Last time, we began reviewing the Court’s oral arguments in civil cases decided in 2018. This time, we’re finishing that review.
Who was the heaviest questioner? Once again, Justice Thomas led, asking 201 questions in all. Dividing the arguments by segment, we find that Justice Theis was the highest questioner for appellants’ initial argument, asking 68 questions to Justice Thomas’ 58 questions, Justice Burke’s 30 questions and Chief Justice Karmeier’s 24 questions. Justices Kilbride and Garman asked 15 questions of appellants. Justice Thomas was by far the heaviest questioner of appellees, asking 108 questions. Justice Theis asked 57 questions, Justice Burke asked 34, Justice Garman asked 33, Chief Justice Karmeier asked 25 questions and Justice Kilbride asked 15 questions. In rebuttal, Justice Thomas was once again the heaviest questioner, asking 35 questions. Justice Theis asked 16, and everyone else was in single digits – Chief Justice Karmeier 8 questions, Justice Garman 5, Justice Burke 4 and Justice Kilbride 2.
Did writing a majority opinion result in asking more questions? For almost all Justices, the answer was yes. Justice Burke asked 2.25 questions of appellants when writing a majority and 3.5 questions of appellees. Justice Garman asked 1 question of appellants and 2.33 questions of appellees when writing a majority. Justice Kilbride, one of the less frequent questioners on the Court, averaged 1 question of appellants when writing a majority and 0.25 in rebuttal. Justice Thomas averaged 3.6 questions of appellants, 4.4 questions of appellees and 1.6 questions in rebuttal. Chief Justice Karmeier averaged 2.5 questions of appellants and four of appellees. Justice Theis averaged 9 questions of appellants when writing the majority and 12 questions of appellees.
It’s difficult to draw strong conclusions, based on only one year’s data, as to whether concurrences and dissents impact questioning. For 2018 civil cases, Justice Garman averaged 0 questions to appellants, 3 to appellees and 1 in rebuttals when writing a concurrence. Justice Thomas averaged 4 questions to appellants, 8.5 to appellees and 1 in rebuttals. Justice Burke asked 6 questions of appellants when writing a dissent and 4 more in rebuttal. Justice Garman asked no questions at all in her civil dissents. Justice Kilbride averaged 2 questions to appellants and none in the next two segments. Chief Justice Karmeier averaged 1.5 questions to appellants in dissents, 1.25 to appellees and 0.5 to rebuttals. Justice Theis averaged 5.5 questions to appellants when writing civil dissents, 1.5 to appellees and 2.0 in rebuttals.
So let’s divide the cases by comparing the majority result to the individual Justice’s vote. When the Justice joined the majority in an affirmance, Justice Burke averaged 1 question of appellants and 1.22 of appellees. Justice Garman averaged 0.75 of appellants and 0.25 in rebuttal to 1.125 of appellees. Justice Kilbride asked 1 question of appellants, 0.11 in rebuttal and 0.67 of appellees. Justice Thomas averaged 4 questions of appellants, 2.5 in rebuttals and 2.75 of appellees. Chief Justice Karmeier asked 1.57 questions of appellants in civil affirmances and 0.57 questions in rebuttal and 1.29 questions of appellees. Justice Theis asked 2.11 questions of appellants, 0.33 questions in rebuttals and 2.22 questions of appellees.
Next, we address reversals where the Justice joined the majority. Justice Burke averaged 2 questions to appellants, 0.4 in rebuttals and 1.8 to appellees. Justice Garman averaged 0.75 questions to appellants, 0.25 in rebuttals and 2 questions to appellees. Justice Kilbride averaged 0.55 questions to appellants, 0.09 in rebuttals and 0.82 to appellees. Justice Thomas averaged 2 questions to appellants, 1.15 questions in rebuttal and 6.15 questions to appellees. Chief Justice Karmeier averaged 0.92 questions to appellants, 0.17 questions in rebuttal and 0.92 questions to appellees. Justice Theis asked 3.33 questions to appellants, 0.75 in rebuttal and 3.08 questions to appellees.
What about where the Justice was in the minority? Well, it’s a very limited data set. Justice Thomas averaged zero questions to appellants, six to appellees and none in rebuttal when dissenting from an affirmance. Chief Justice Karmeier averaged zero questions to appellants, 0.5 to appellees and zero in rebuttals. When dissenting from a reversal, Justice Burke averaged six questions to appellants and four in rebuttal. Chief Justice Karmeier averaged two questions to appellants, four to appellees and two in rebuttals. Justice Theis averaged nine questions to appellants and four in rebuttals.
We also tracked which Justice asked the first question in each segment. Over only one year, this metric isn’t especially informative, but over the longer term, asking the first question generally suggests that the Justice is writing an opinion.
Justice Burke led off twice to appellants and twice to appellees. Justice Garman was first once to appellants and twice to appellees and in rebuttals. Justice Kilbride began once with appellants and twice in rebuttals. Chief Justice Karmeier began twice with appellants, once with appellees and three times in rebuttal. Justice Theis began six times with appellants, three times with appellees and twice in rebuttals. Justice Thomas led the Court, asking the first question ten times of appellants, sixteen times of appellees and six times in rebuttals.
Join us on Tuesday as we turn our attention to the Court’s criminal arguments last year.