Last week, we looked at whether the level of disagreement on the Illinois Supreme Court affects the average number of questions at oral argument. Today, we begin our analysis of the central question addressed in most of the previous scholarship: does the losing side tend to get the most questions?
For the entire period from 2008 through the end of 2014, the answer was clear: yes. For the entire seven years, winners (regardless of which side they were on) averaged 13.64 questions, while losers averaged 17.1 questions. Breaking the data up year-by-year reveals that winners were questioned more heavily during only one year of the period – 2009.
But one can easily imagine that this measure might vary depending on whether the ultimate winner is the appellant or the appellee. For example, if one supposes that the Court is reluctant to reverse without good reason, it would follow that a losing appellee might be questioned significantly more heavily than an appellant about to lose his or her case would be. So does the Court average more questions when it’s reversing?
In fact, there is little evidence of reversal aversion in the Court’s question patterns. In only three of the seven years did the Court average more questions when it reversed than it did in affirmances.
In the chart below, we divide out the data by winning and losing appellants, and winning and losing appellees. Several interesting points are worth noting about this chart. First, note that in five of the seven years of our study, losing appellants got more questions than any other kind of party. For both appellants and appellees, losers averaged more questions from the Court than winners did. In all seven years, winning appellees get the fewest questions. It appears to make no difference to the Court’s patterns whether the decision is to affirm or reverse – for both appellants and appellees, losers average more questions than winners in every year from 2008 through 2014.
Tomorrow, we’ll address a related question – can the size of the difference between the number of questions asked one side and the other predict the result? In other words, is an appellee who gets triple the questions the appellant does measurably more likely to lose than one who gets double? What – if anything – can the margin tell us about the vote?