Last week, we analyzed the pattern of Justice Kilbride’s questions in oral arguments in civil cases, asking whether it’s possible to infer who Justice Kilbride will vote for and whether or not he’s writing an opinion. This week, we do the same for the Court’s criminal cases between 2008 and 2016.
Overall, Justice Kilbride has voted with the majority in 141 criminal affirmances for the nine years we’re studying. In sixteen of those cases, he wrote the Court’s opinion. In a further three, he wrote a concurrence. For these cases, he tends to question the losing party more closely (although Justice Kilbride typically doesn’t ask many questions), averaging 0.57 questions per argument to appellants, and 0.28 questions to appellees. He questions appellants a bit more heavily when he’s writing the majority opinion – 0.81 questions per argument – but his questioning to appellees is actually a bit lighter in such cases, averaging 0.13. Justice Kilbride asked no questions of anyone in the three affirmances where he wrote a concurrence. In cases where he’s not writing an opinion, Justice Kilbride has averaged 0.55 questions of appellants and 0.31 of appellees.
Justice Kilbride has voted with the majority in 167 reversals in criminal cases. He wrote the majority opinion in 25 of those cases, and wrote special concurrences in four. Overall, he tends to question the losing party more heavily in such cases. He averages 0.39 questions of appellants and 0.66 questions of appellees. When he’s writing the majority opinion, he’s more active with respect to both sides, averaging 0.8 question to appellants and 0.96 to appellees. Once again, he’s asked no questions at all when he wrote a concurrence. In the 138 cases where Justice Kilbride wasn’t writing an opinion, he averaged 0.33 questions to appellants and 0.62 to appellees.
Like most of the Justices, Justice Kilbride hasn’t dissented much in criminal cases. Overall, he’s dissented from affirmances in ten cases between 2008 and 2016. In four of those ten cases, he wrote a dissent. Overall, when dissenting from an affirmance, Justice Kilbride has questioned the side he’s voting against, rather than the side who’ll wind up losing, a bit more heavily. He’s averaged 0.7 questions per argument to appellants and 1.4 to appellees. Writing has an impact in these cases – when writing a dissent, he’s averaged 1 question per argument to appellants and 3.5 to appellees. When not writing, he averages 2.17 questions to appellants, none to appellees.
There’ve been only five criminal cases in nine years where Justice Kilbride dissented from a reversal. Overall, Justice Kilbride has averaged 1 questions to appellants, 0.2 to appellees. Writing has had no consistent effect; he’s averaged 0.5 questions per side to both appellants and appellees in the two cases where he’s written a dissent. When he’s not writing, Justice Kilbride has averaged 1.33 questions to appellants and zero to appellees.
Join us back here tomorrow as we continue our analysis of the Court’s oral arguments.