As we’ve been discussing for the past few weeks, the academic literature has consistently concluded that the losing party, on average, gets more questions in oral argument than the winning party. Yesterday, we addressed whether the result – affirmance or reversal – or the vote margin had the greatest impact on the difference in questions to one side and the other.
We wound up with a surprising result: losing parties only consistently average more questions when the Court ultimately affirms – not in the case of reversals. We’ll be looking more deeply at possible explanations for that result in the next several weeks, but one possible theory is that affirmances are, in a sense, a reversal of fortune at the Supreme Court. The appellant “wins” by persuading the Court to grant the PLA, but then loses on the merits when the Court affirms. Perhaps the Court tends to question appellants in an affirmance more heavily in order to make sure that there is in fact no basis for reversal in an opinion which the Court agreed to review.
Today, we consider a somewhat different question: just how long are the odds against winning for a party that gets more questions?
The table below plots the percentage of unanimous and non-unanimous civil decisions in which the winning party received more questions from the Court, year-by-year from 2008 through 2014. There is no consistent difference between unanimous and non-unanimous decisions. Parties getting the most questions were more likely to win non-unanimous decisions in 2008, 2010 and 2014. The more heavily questioned side won only 16% of all unanimous decisions in 2008 and 2010, 18.75% of non-unanimous decisions in 2012, one third of non-unanimous decisions in 2008 and 2014 and one-third of unanimous decisions in 2011 and 2014. In 2009, the more heavily questioned party won nearly forty percent of all decisions. For the entire seven year period, the more heavily questioned party won 27.27% of all non-unanimous decisions, and only slightly more – 31.88% – of all unanimous decisions.
Next week, we consider the extremes of the Court’s oral arguments – the most questions in a single argument, the most questions asked to a single party, and so on. Then, we turn to the question of whether the first question is statistically likely to be from the author of the majority opinion.