Last week, we looked at the pattern of Justice Freeman’s questioning in oral arguments in civil cases, analyzing whether he tends to ask more questions of the party he will ultimately vote against, and what impact writing an opinion has on questioning. This week, we take a look at Justice Freeman’s patterns in criminal cases.
In Table 473 below, we report the data for criminal cases in which Justice Freeman votes with the majority. In affirmances, Justice Freeman averages 1.78 questions to appellants (the losing party), but only 1.07 to appellees. When he is writing the majority in an affirmance, Justice Freeman questions the appellants a bit more heavily, averaging 2.67 questions, but writing has little impact on his questioning of the winning party. Writing a concurrence has only a slight impact. He averages 2 questions to appellants, and only 0.67 to appellees. When not writing in an affirmance, Justice Freeman averages 1.65 questions to appellants, 1.06 to appellees.
Justice Freeman is a bit more active to both sides in a reversal where he’s in the majority. But unlike many of the other Justices, in reversals he doesn’t tend to question the losing party more heavily. Justice Freeman averages 2.09 questions to appellants, 1.56 to appellees. Writing the majority opinion in a reversal has no consistent impact. In such cases, he averages 1.6 questions and 1.87 to appellees. Justice Freeman has been more active when writing a special concurrence in a reversal, but as usual, it’s a small data set. He averages 2.67 questions to appellants, 2.5 to appellees. When not writing an opinion in a reversal, Justice Freeman averages 2.15 questions to appellants, 1.41 to appellees.
In Table 474, we report the data on Justice Freeman’s question patterns when he is in the minority in criminal cases. We see here that unlike most of the other Justices, Justice Freeman doesn’t consistently ask the losing party more questions. In all four divisions of the docket – in the majority of an affirmance, in the majority of a reversal, and disagreeing with an affirmance and a reversal – Justice Freeman averages more questions to appellants than to appellees.
When Justice Freeman is in the minority of an affirmance, he averages 2.93 questions to appellants and 2.21 to appellees. Writing a dissent is a small data set, but has a substantial impact. When writing a dissent, Justice Freeman averages 5.5 questions to appellants, 5.25 to appellees. When not writing, Justice Freeman averages 1.7 questions to appellants, 1 to appellees.
When Justice Freeman is in the minority of a reversal, he averages 3.67 questions to appellants and 1.58 to appellees. Writing a dissent has no impact on his questioning. In such cases, he averages 3.88 questions to appellants, 1.25 to appellees. When not writing, Justice Freeman averages 3.5 questions to appellants and 2.25 to appellees.
Join us back here tomorrow as we finish our look at Justice Freeman’s patterns in oral arguments in criminal cases.