Our review of the Court’s oral arguments between 2008 and 2016 continues this week with Chief Justice Thomas Fitzgerald. Since Chief Justice Fitzgerald retired in 2010, our data is more limited than it is for other Justices. Because we’re tracking correlations between questions and voting, we disregard the cases in 2010 for which the Chief Justice heard oral argument but which were handed down after his departure from the Court. We begin with the civil docket.
Chief Justice Fitzgerald voted with the majority in 32 civil affirmances. In five of those cases, he wrote the majority opinion. He wrote no concurrences in civil affirmances. Overall, like most Justices, he averaged more questions to the appellant – the losing party in affirmances – than to the appellees. He asked 139 questions of appellants, an average of 4.34 questions per case, and 79 questions of appellees – an average of 2.47. As usual, writing the majority opinion had an impact, but interestingly, when Chief Justice Fitzgerald wrote the majority opinion, he averaged slightly more questions to the winning party – 7.4 questions per case to appellees, 6.6 to appellants. In affirmances where Chief Justice Fitzgerald didn’t write an opinion, he averaged 3.93 questions to appellants and only 1.56 to appellees.
Chief Justice Fitzgerald voted with the majority in 55 reversals in civil cases. In nine of those cases, he wrote the majority opinion. He wrote no concurrences in those cases, leaving 46 where he didn’t write an opinion. In reversals, the Chief Justice averaged more questions to the winning party. He asked 258 questions to appellants (4.69 per case) and only 172 to appellees (3.13 per case). Writing the majority opinion, as usual, had a substantial effect. In those cases, the Chief Justice averaged 7.67 questions to appellants and 7.33 to appellees. In the 46 reversals where he didn’t write an opinion, Chief Justice Fitzgerald asked 189 questions of appellants (4.11 per case) and 106 to appellees (2.3 per case).
For every other Justice, after examining the data for cases in which the Justice voted with the majority, we’ve tracked the trends where he or she voted in the minority. For Chief Justice Fitzgerald, there’s almost no data for voting in the minority in civil cases. Between 2008 and 2010, Chief Justice Fitzgerald wasn’t in the minority of an argued civil affirmance a single time. He dissented from one civil reversal, asking one question of the appellant and none of the appellee.
Join us back here tomorrow as we look further at the data for Chief Justice Fitzgerald’s question patterns in civil cases.