Yesterday, we analyzed whether it’s possible, based on all oral arguments in criminal cases between 2009 and 2016, to infer from watching Justice Kilbride’s question patterns in criminal cases how he’s voting, and whether he’s writing an opinion. Today, we ask the same question based on whether or not Justice Kilbride asks the first question.
The short answer is Justice Kilbride virtually never leads off the Court’s questions. When Justice Kilbride is in the majority of an affirmance in a criminal case, there’s a 2.13% chance he’ll ask the first question of appellants. He’s never asked the first question of appellees in such cases. Writing has an impact; when he’s writing the majority opinion in such cases, Justice Kilbride has asked the first question of appellants in 6.25% of cases. He hasn’t asked the first question to either side in the three affirmances where he’s written a special concurrence. In the affirmances where he hasn’t written an opinion, Justice Kilbride has averaged 1.64 questions to appellants.
In the 167 cases where Justice Kilbride has voted in the majority of a reversal, he’s averaged 3.59 questions to appellants and 1.8 questions to appellees. He’s averaged 4 questions per argument to appellants in cases where he wrote the majority opinion, and 4 questions to appellees. When he’s not writing, he’s averaged 3.6 questions to appellants, and 1.45 questions to appellees.
When Justice Kilbride votes with the minority in criminal cases, he asks the first question of appellants 20% of the time. He hasn’t asked the first question of appellees in any such cases. He’s asked the first question of appellants in 50% of the cases where he’s written a dissent, but hasn’t led off questioning in any case where he hasn’t written. Justice Kilbride hasn’t asked the first question in any criminal case where he voted in the minority of a reversal in a criminal case.
Join us back here next Tuesday as we continue our analysis of the Court’s oral arguments.