Last week, we completed our two-week examination of Justice Kilbride’s patterns in oral arguments for civil and criminal cases between 2008 and 2016. Today, we begin our examination of Justice Thomas’ patterns.
In Table 485, we report the data on Justice Thomas’ question patterns when voting in the majority. Both when the Court affirms and reverses, Justice Thomas follows the common pattern of questioning the losing party more heavily. In 113 affirmances, Justice Thomas has averaged 5.83 questions to appellants and 2.31 to appellees. In 161 reversals, he’s averaged 4.06 questions to appellants, but 5.71 to appellees.
Writing the majority opinion has the most effect on Justice Thomas’ questioning of the losing party. In affirmances, Justice Thomas’ average questions to appellants jumps to 6.39 when he’s writing the majority. Justice Thomas actually averages slightly fewer questions to appellees when he’s writing the majority opinion, averaging 1.94 per argument. When Justice Thomas writes the majority opinion in a reversal, he averages 7.65 questions to appellees and 4.58 to appellants. The sample size is negligible for special concurrences – two in affirmances, one in reversals. When Justice Thomas isn’t writing, he averages 5.74 questions to appellants in an affirmance and 2.42 questions to appellees. He averages 3.99 questions to appellants in reversals, but 5.34 to appellees.
In Table 486, we report the data for cases in which Justice Thomas voted in the minority. There have been very (very) few – only five civil cases argued in which Justice Thomas was in the minority of an affirmance, and only six where he voted in the minority of a reversal. Writing a dissent had virtually no impact. When voting in the minority of an affirmance, Justice Thomas averaged 4.2 questions to appellants, 5 to appellees overall. When writing a dissent, he averaged four questions to each side. When not writing and voting in the minority of an affirmance, Justice Thomas averaged 4.25 questions to appellants, 5.25 to appellees.
When in the minority of a reversal, Justice Thomas averaged 11.5 questions to appellants, 0.5 to appellees (note that in both of these cases, he tends to question the side he’s voting against more heavily, not the side which will ultimately lose the case). When writing a dissent in such cases, Justice Thomas averages 11.75 questions to appellants, 0.75 to appellees. When not writing, he averages 11 questions to appellants and none to appellees.
Join us back here tomorrow as we take a look at what we can infer when Justice Thomas asks the first question in a civil case.