Last week, we began our analysis of questioning patterns on the Court by addressing the most basic question of all: which side gets the most questions? Today, we address a related question: does it matter if there is disagreement on the Court?
Certain theories about the role of oral argument in appellate decision making would suggest that the answer is yes. If the Court has already reached a tentative decision before argument, members of the Court might well take the opportunity to try to reach their colleagues on the opposite side of the case. In courts where oral argument is the court’s first real opportunity to turn its attention as a group to the particular appeal, one might expect, as Justices perceive disagreement on the Court, for questions to multiply. On the other hand, if Justices are primarily interested in testing their own preliminary conclusions, it might not matter whether or not the Court is divided.
Looking at the entire seven-year period, we see that the unanimity of the Court appears to have had no impact at all on questioning patterns. Appellees averaged exactly the same number of questions before unanimous and non-unanimous Courts over the entire period. Appellants were actually asked a few more questions when the Court was unanimous.
Turning to the year-by-year data, we see little evidence that the presence of disagreement among the Justices influences how “hot” the bench is at oral argument in any consistent way. Appellants averaged more questions when the Court is unanimous in 2008, 2010, 2011 and 2014, but fewer in 2009, 2012 and 2013. Appellees averaged more questions before a unanimous Court in 2008, 2009, 2010 and 2013, but fewer in 2011, 2012 and 2014. Average questions to both sides before unanimous courts may be drifting downwards slightly, but average questions from non-unanimous courts show no such trend.
Given that non-unanimity appears to have at best an equivocal impact on the Court’s questioning patterns, we can conclude that this data offers no support to the view that the Justices’ questions are primarily aimed at persuading colleagues.
Tomorrow, we will continue this line of investigating by disaggregating this data further, looking at the overall question patterns before the most closely divided (two- and three-dissenters) Courts.