Last week, we began our detailed look at the individual Justices’ question patterns during oral argument. You’ll recall we began by dividing 233 oral arguments in civil cases into the four possible voting scenarios – the Justice voting with the majority to reverse or affirm, and the Justice voting in the minority in either case. In the tables below, the first letter designates the result, and the second refers to the Justice’s vote. We then divided the cases by whether or not the Justice wrote an opinion: not writing, writing the majority or special concurrences when the Justice is in the majority, and not writing or dissent when he or she is in the minority.
The Table below reflects Justice Thomas Kilbride’s question patterns when voting with the majority. As we noted a month ago, Justice Kilbride is, in most years, the lightest questioner on the Court in civil cases, and the data reflects that. When the Court affirms, Justice Kilbride asks slightly more questions of the appellant – the losing party – than of the appellee. Curiously, when the Court reverses, Justice Kilbride has averaged exactly the same number of questions of the two sides. In reversals, it is clear that writing has some impact on the Justice’s patterns; he averages significantly more questions when he’s writing the majority opinion than when he’s not writing at all (Justice Kilbride has asked no questions when he’s writing a special concurrence in reversals). On the other hand, Justice Kilbride averages fewer questions when he’s writing the majority opinion and the Court affirms, as compared to cases where he’s not writing one of the opinions.
We turn next to the cases in which Justice Kilbride is in the minority. When the Court reverses but Justice Kilbride votes to affirm, he averages somewhat more questions to the appellant – the party Justice Kilbride ultimately votes against. He averages significantly more questions in those cases when he’s writing a dissent than in cases where he isn’t.
On the other hand, where the Court affirms with Justice Kilbride in the minority, his average question level is quite close. In such cases, Justice Kilbride does average significantly more questions to appellants when he’s writing a dissent than when he’s not. However, dissents have no impact on questioning to the appellee.
Tomorrow, we’ll take a look at what we can infer about Justice Kilbride’s likely vote and whether he might be writing an opinion from whether he asks the first question of either side.