Last week, we looked at the data from the past nine years’ oral arguments in civil cases, analyzing how Justice Garman’s vote, and whether or not she’s in the majority, impacts her question patterns. We also looked at whether it’s reasonable to infer that Justice Garman might be writing an opinion in cases where she’s unusually active at argument. This week, we turn our attention to the data for criminal cases.
We analyzed data from 148 criminal arguments in which Justice Garman was in the majority of an affirmance, and 166 arguments in which she was in the majority of a partial or complete reversal. When Justice Garman is in the majority of an affirmance, she averages 2.51 questions to appellants, only 0.8 to appellees. Writing the majority opinion has an impact on her questions to appellants – she averages 3.47 questions to appellants across thirty such cases – but averages only 0.67 questions to appellees when she’s writing the majority. There are very few cases in which Justice Garman has specially concurred in the majority of an affirmance, but writing has little impact there. When not writing, she averages 2.28 questions to appellants and 0.83 to appellees.
When Justice Garman is in the majority of a reversal, she once again questions the losing party more heavily – 1.54 questions to appellants, 1.98 to appellees. Writing the majority opinion has an impact with respect to both parties. In the 22 cases where she wrote the majority opinion in a reversal, she averaged 2.5 questions to appellants, 2.59 to appellees. Once again, there are few cases of special concurrences, but they had little impact; she averaged 0.4 questions to appellants, 2.0 to appellees. When Justice Garman is not writing an opinion voting in the majority of a reversal, she averages 1.44 questions to appellants, 1.88 to appellees.
Justice Garman is seldom in the minority in criminal cases, so we should be cautious about reading too much into the data. When she’s in the minority of an affirmance, she more heavily questions the party she’s voting against rather than the party which will lose. She averages 2.5 questions to appellants, 2.75 to appellees. There’s only one example in the entire nine years when she wrote a dissent from an affirmance.
Justice Garman is twice as likely to be in the minority of a reversal than to dissent from an affirmance. When in the minority of a reversal, she averages 2.5 questions to appellants, 0.13 to appellees – again, more heavily questioning the side she votes against. When writing a dissent in such cases, she averages 2.67 questions to appellants, 0.17 to appellees.
Join us back here tomorrow morning as we look further at Justice Garman’s record in oral arguments in criminal cases.