Yesterday, we concluded our analysis of Justice Mary Jane Theis’ questioning patterns from oral arguments during her five years on the Court, looking for indications about her likely voting and whether or not she might be writing an opinion. Today, we turn to Justice Theis’ predecessor, former Chief Justice Thomas R. Fitzgerald.
Our analysis of Chief Justice Fitzgerald’s questioning patterns is simplified considerably by an amazing statistic. The Court’s website contains audio and video files for every oral argument since January 15, 2008. Between that date and Chief Justice Fitzgerald’s final term in September, 2010, the Court heard oral argument in 88 civil cases which were decided before the Chief’s departure (so that we can compare his questions and votes). Chief Justice Fitzgerald voted with the majority for 87 of those 88 cases. He asked only one question – of the appellant – during the lone exception, a 2008 decision in Mikolajczyk v. Ford Motor Company (the Chief wrote a partial concurrence and partial dissent in Mikolajczyk).
We turn then to Table 104, which reports the Chief Justice’s question patterns when voting with the majority. We see that Chief Justice Fitzgerald, a comparatively active questioner during oral argument, tended to average more questions to the appellant than the appellee regardless of which side ultimately won the case. However, he averaged significantly more questions to the appellee – roughly the same number as to the appellant – when the Court reversed, so watching his question patterns closely did give a clue as to where the Court might be going with the case.
As we’ve seen with nearly all the other Justices, writing an opinion had a definite impact on Chief Justice Fitzgerald’s question patterns. In all four situations below – questions to appellants and appellees in reversals and affirmances – the former Chief Justice asked substantially more questions in cases where he was writing the majority opinion than when he wasn’t. Note also that Chief Justice Fitzgerald tended to average more questions of both sides when he wrote the majority opinion in a reversal than when he wrote the majority for an affirmance.
Join us back here next week as we conclude our Justice-by-Justice review of the Illinois Supreme Court’s question patterns at oral argument with day two of our analysis of former Chief Justice Thomas Fitzgerald.