There are many theories among the appellate bar about what sparks questions from the court during oral argument. One of the most frequently heard theories is that the Justices are talking to each other – that Justices are raising points which are troubling their colleagues, or trying to expose what they see as problems with the position adopted by another group of Justices.
One way of testing that theory is to divide the oral arguments into unanimous and non-unanimous decisions, and compare the average questions asked to each side. If the Justices’ questions are attempts to persuade dissenting colleagues, we would expect non-unanimous decisions to produce a higher level of questioning.
We report the data for civil cases from 2008 to 2015 in Table 421 below. We see that far from supporting the theory that disagreement on the Court increasing questioning, the opposite is often true – the Court tends to ask more questions when the Justices are unanimous. Among appellants, in 2008 the Court averaged 13.33 questions in non-unanimous cases, but 18.78 questions in unanimous cases. For 2009, appellants in non-unanimous cases averaged 21.57 questions to 19.66 in unanimous decisions. For 2010, appellants in non-unanimous cases got an average of 19 questions, but appellants in unanimous decisions got 19.5. The following year, appellants in non-unanimous cases were down a bit to 16.44, but unanimous cases were still heavier – appellants averaged 18.07 questions. In 2012, questions to appellants in non-unanimous cases were flat at 16.28. Questions to appellants in unanimous cases averaged 15. For 2013, the Court was more active with appellants in non-unanimous cases – 17.21 to 14.15. But the effect only lasted a year – in 2014, appellants in non-unanimous cases averaged 16.83 questions to 17.05 in unanimous ones, and last year, appellants in non-unanimous cases averaged 9.56 to 10.38 in unanimous cases.
On the appellee side, once again, there’s little evidence that division makes for a hotter bench. In 2008, appellees in non-unanimous cases averaged 17.83 questions, while appellees in unanimous cases got 18.72. In 2009, appellees in non-unanimous cases averaged 12.86 questions to 16.47 for unanimous decisions. In 2010, appellees in non-unanimous cases averaged 11.67 questions to 14.17 for unanimous cases. In 2011, appellees in non-unanimous cases averaged 14.56 questions to 9.78 for unanimous cases. In 2012, the two sides were nearly dead-even: 15.89 questions to non-unanimous appellees, 15.76 to unanimous appellees. In 2013, appellees in non-unanimous cases averaged 9.07 questions to 9.45 in unanimous cases. In 2014, appellees in non-unanimous cases averaged 17.17 questions to 11.41 for appellees in unanimous decisions. Finally, in 2015, appellees in non-unanimous cases averaged 10.11 questions to 9.32 questions for appellees in unanimous decisions.
Join us back here tomorrow as we turn our attention to the effect of division on the Court on questioning in criminal cases.