Last week, we continued our analysis of the Court’s oral arguments between 2008 and 2016 with a look at former Chief Justice Fitzgerald’s patterns in civil cases during the two years before he retired, 2008-2010. This week, we turn our attention to Chief Justice Fitzgerald’s patterns in criminal cases.
In all, Chief Justice Fitzgerald voted with the majority to affirm in 59 cases, and voted with the majority to reverse in 55 criminal cases. He wrote the majority opinion affirming in eight criminal cases, and wrote the majority opinion reversing in six criminal cases.
In both affirmances and reversals, Chief Justice Fitzgerald followed the same pattern as most of the other Justices, questioning the losing party more heavily. In affirmances, Chief Justice Fitzgerald averaged 5.46 questions to appellants, but only 2.41 to appellees. Writing the majority opinion had a substantial effect; in cases where he was writing the majority, Chief Justice Fitzgerald averaged 14.25 questions to appellants, and 3.25 to appellees. Chief Justice Fitzgerald wrote no concurrences in affirmances during these years. When he was not writing an opinion, Chief Justice Fitzgerald averaged 4.08 questions to appellants and 2.27 to appellees.
In the 55 cases where he joined the majority of a reversal, Chief Justice Fitzgerald averaged 4.67 questions to appellants and 4.82 questions to appellees. Interestingly, writing a majority had more of an effect on the winning party – when writing the majority, Chief Justice Fitzgerald averaged 10.5 questions to appellants, and 7.83 to appellees. Chief Justice Fitzgerald wrote no concurrences in criminal reversals. When he was not writing an opinion in a reversal, Chief Justice Fitzgerald averaged 3.96 questions to appellants and 4.45 to appellees.
Chief Justice Fitzgerald didn’t vote with the minority of a single criminal case between 2008 and 2010. There’s only evidence that the Chief Justice’s retirement might have made a difference in the result in one case argued in 2010.
The Chief Justice participated in nine arguments in 2010 where the case was decided after his retirement. In five of those nine cases, he asked no questions at all. In one of the remaining four cases, he asked more questions of the appellant, suggesting that he was leaning towards affirmance. The Court affirmed unanimously in that case. In the remaining three cases where Chief Justice Fitzgerald asked more questions of the appellees, the Court reversed unanimously in two. In only one case, where Chief Justice Fitzgerald asked fourteen questions of appellees to only four of appellants, did the Court wind up affirming with modifications by a four to three vote.
Join us back here tomorrow as we conclude our analysis of Chief Justice Fitzgerald’s patterns in oral arguments between 2008 and 2010.