Yesterday, we reviewed the data on Justice Burke’s question patterns in criminal cases. Today, we ask a related question: if Justice Burke asks the first question, can we infer that she is likely writing an opinion?
Writing the majority opinion has some impact on the likelihood that Justice Burke will ask the first question. In affirmances where Justice Burke is in the majority, she asks the first question of appellants 16.03% of the time, and of appellees, 12.21%. When she’s writing the majority opinion, she leads off with appellants 23.08% of the time, and with appellees 15.38%. Concurrences – always a small data set – have a slight impact on Justice Burke’s questioning of appellees, but little to none of appellants. Overall, when Justice Burke isn’t writing an opinion (and she’s voting with the majority), there’s a 15.65% chance she’ll begin the questioning of appellants in affirmances, 11.3% of appellees, 11.67% of appellants in reversals, 9.17% of appellees.
Writing dissents doesn’t have an enormous impact on the probability that Justice Burke will ask the first question. When the Court affirms with Justice Burke in the minority, there’s a 9.52% chance she’ll ask the first question of appellants, but that only increases to 11.76% when she’s writing a dissent. There’s a 28.57% chance she’ll ask the first question of appellees, and that only increases to 29.41% when she writes a dissent. When she’s in the minority of a reversal, there’s a 29.41% chance she’ll ask the first question of appellants, but only a 5.88% chance she’ll lead off for appellees. Writing a dissent has virtually no effect at all.
Join us back here next Tuesday as we consider the questioning patterns of Justice Garman.