Over the past few weeks, we’ve been taking a close look at what can be learned from the Illinois Supreme Court’s oral arguments since 2008. We’ve shown that the Court tends to ask slightly more questions of appellants in civil cases, and definitely averages more questions to appellants in criminal cases. We’ve disproven the common claim that the Court averages many more questions in civil than in criminal cases. We’ve shown that disagreement on the Court doesn’t produce a larger total number of questions, and we’ve shown that not only is the more heavily questioned side likely to lose, as the margin between questions to one side and the other increases, the odds of the more heavily questioned party winning drop like a rock.
Today, we test a different hypothesis. If questioning from oral argument indicates a Justice’s disquiet with your position – which is one interpretation of the result that the loser gets more questions – then perhaps we can expect the difference between one side’s total questions and the other’s to be higher in unanimous decisions. If a case is closely divided, questioning might be as well: the majority questions the party which will eventually lose, but the minority questions the eventual winner. But if a decision is unanimous, everyone on the Court is concentrating their questions on the same party – the party who’s in trouble.
So: does the difference in total questions between one side and the other tend to be higher in unanimous decisions?
There is at least some evidence that the answer is yes for civil cases. In 2008, 2010, 2011, 2014 and 2015, the margin between the sides was greater in unanimous than in non-unanimous decisions. In 2008, the margin for unanimous decisions was 12.61 questions; for non-unanimous, it was 11.5. In 2010, the sides were close – 7.54 for unanimous, 7.33 for non-unanimous. In 2011, unanimous cases had a margin of 11.63 to 6.11 for non-unanimous cases. In 2014, unanimous cases had an average margin of 10.37 questions to only 4.33 in non-unanimous cases. And in 2015, the margin was 9.06 in unanimous cases, only 5 questions in non-unanimous ones.
In only three years was the margin greater in non-unanimous cases: 2009, 2012 and 2013. In 2009, the average margin in unanimous cases was 8.72 to 15 in non-unanimous cases. In 2012, the margin in unanimous decisions was 8.81 to 10.17 in non-unanimous decisions. And in 2013, the margin for unanimous decisions was 8.8 to 10.14 in non-unanimous decisions.
Join us back here tomorrow morning as we look at the data for criminal cases.