In analyzing an oral argument, we’re interested in two facts about the individual Justices: how is the Justice voting, and is she or he writing one of the opinions? Throughout this phase of our investigation, we divide the cases into four voting scenarios: reverse and affirm when the Justice votes with the majority, and reverse and affirm when the Justice is in the minority. For each potential voting combination in the majority – shown as R/R and A/A in the Table below – there are three possibilities: the Justice is not writing, she is writing the majority opinion, and she is writing a special concurrence. When the Justice is in the minority, we have only two possibilities: not writing, or writing a dissent. So this gives us ten potential scenarios to investigate.
In Table 75 below, we see Justice Burke’s question patterns when voting with the majority. Justice Burke consistently averages more questions when she’s writing the majority opinion – more than double to the appellant when the Court is reversing, around 50% more to the appellee. The effect is even more dramatic to the appellant when the Court is affirming – a nearly 270% increase – but interestingly, questions to the appellee when the Court is affirming are slightly less when Justice Burke is writing the majority. Recall our result earlier in this investigation showing that the losing party – in an affirmance, the appellant – tends to get more questions than the winner. Although we report data for special concurrences below, we shouldn’t draw any firm conclusions from it, since it’s based on quite a small sample. But with that caveat – Justice Burke asked more questions of both sides in reversals when she was writing a concurrence. Writing a concurrence had virtually no effect at all on Justice Burke’s question patterns when the Court affirmed.
In Table 76 below, we see data for cases in which Justice Burke was in the minority. Compare the data for reversals where Justice Burke was in the majority to reversals where she was in dissent; Justice Burke asked more questions of the appellant, but somewhat fewer of the appellee when in dissent. The effect is the same with affirmances.
Also, compare appellants and appellees in reversals in Table 76. When Justice Burke is in the minority in a reversal, she averages somewhat more questions of the appellant – the party she ultimately votes against, rather than the party winning the case. The effect is reversed where the Court affirms – Justice Burke averages more questions to the losing party – but the difference is not substantial.
Tomorrow, we’ll look at whether Justice Burke is more likely to ask the first question of either side depending on the result and her vote, and whether or not Justice Burke writes an opinion.