Last week, we looked at how often the first question was asked by the author of the majority opinion. Today we broaden the question – how likely is it that the first questioner to both sides is writing something – the majority, a special concurrence or a dissent?
As we discussed last week, if there were no relationship between writing and questioning, we would expect to see a top line of 14.3%. Compared to that baseline, the evidence suggests that it is comparatively likely that the first question is asked by a Justice writing an opinion; with the exception of 2010, nearly one third of first questioners wind up writing.
The data for writers of majority opinions is similar. With the exception of 2008 and 2010, authors of majority opinions ask the first question of the winning side nearly one third of the time. With the exception of 2010, majority opinion authors are even more likely to ask the first question of the losing side – exactly one third of the time in 2008 and 2011, and nearly forty percent in 2012.
In contrast, there is no apparent relationship between Justices writing a special concurrence and the likelihood that the Justice asks the first question. The Court writes relatively few special concurrences each year, so year-by-year data is uninformative, but for the entire seven year period, only 6.82% of writers of special concurrences were the first questioner of one side or the other – less than a random result.
Dissents, however, do somewhat increase the likelihood that a Justice will ask the first question. Remember that we concluded a few weeks ago that the Justices are likely to average more questions to the side they disagree with. A dissenter disagrees with the winning side, and sure enough, between one quarter and one third of all dissenters between 2008 and 2014 (with the sole exception of 2009) asked the winning side the first question. On the other hand, dissenters were significantly less likely to ask the first question of the losing side (the side they agreed with). In four of the seven years during our study period, a random fraction or below of the dissenters led off questioning of the losing side.
Next week, we’ll take a one-week break from our data analytic work for a statistical preview of leading cases from the Court’s upcoming September term.