Yesterday, we showed that unlike many of his colleagues, Justice Freeman does not tend to ask the party he’s voting against more questions at oral argument – he averages more questions to the appellants in every scenario. Today, we ask whether we can infer that Justice Freeman is writing an opinion in cases where he asks the first question.
We report the data in Table 475 on cases in which Justice Freeman was in the majority. In these cases, the answer to our question is no – writing an opinion does not make it noticeably more likely that Justice Freeman will ask the first question. Overall in affirmances, Justice Freeman asks the first question of appellants in 26.27% of cases, and leads off with appellees 13.87% of the time. When he’s writing the majority, those numbers are virtually unchanged – 27.78% on appellants, 16.67% for appellees. When Justice Freeman is in the majority of an affirmance, but not writing an opinion, there’s a 26.72% chance he’ll ask the first question of the appellants, 13.79% for appellees.
When Justice Freeman is in the majority of a reversal, there’s a 26.97% chance he’ll ask the first question of appellants (almost identical to affirmances). He asks the first question of appellees 19.1% of the time. Writing the majority opinion means he’s significantly less likely to begin the questioning – 13.33% chance of leading off on the appellants and appellees. When he’s not writing in a reversal, Justice Freeman begins the questioning of appellants in 29.41% of cases and begins with appellees 17.65% of the time.
The data is similar when Justice Freeman is in the minority of a criminal case. In cases where Justice Freeman is in the minority of an affirmance, there’s a 7.14% chance he’ll begin with appellants to 14.29% with appellees. Justice Freeman wrote dissents in four criminal affirmances and didn’t ask the first question in any of them. When in the minority of a reversal but not writing an opinion, Justice Freeman asks the first question of appellants 10% of the time, and begins with appellees 20% of the time. When Justice Freeman is in the minority of a reversal, he asks the first question 16.67% of the time for each side. When he’s writing a dissent, Justice Freeman has asked the first question 25% of the time for each side.
Join us back next next Tuesday as we continue our analysis of the past nine years of the Court’s oral arguments.