Yesterday, we addressed the court-wide data for the oral arguments in the criminal cases decided last year. Now, let’s dig down to the Justice-by-Justice numbers.
Long-time readers will know that historically, the most active questioner on the Court during oral arguments tends to be Justice Thomas. But last year on the criminal side, Justice Theis was the more active. For appellants in the opening segment of argument, Justice Theis averaged 4.62 questions to 3.12 for Justice Thomas. Justice Theis asked 3 questions of appellees to Justice Thomas’ 2.96. Only in rebuttal did Justice Thomas lead, 0.58 questions to 0.27. Behind Justices Theis and Thomas, the rest of the Court was less active. For appellants, Justice Burke was third, Justice Garman next and Justice Neville after that. Chief Justice Karmeier (0.96) and Justice Kilbride (0.08) asked very few questions of criminal appellants. On the appellee side, the Chief Justice averaged 2 questions, Justice Garman 1.65 and Justice Burke 1.35. Justices Neville and Kilbride both averaged under 1 per argument. Questions are few during rebuttals – Justice Burke was second at 0.35, slightly ahead of Justices Theis and Kilbride at 0.27.
Does heavier-than-expected questioning from a Justice suggest he or she may be writing an opinion? Although we must review the numbers with some caution, since during a single year individual Justices will write only a few opinions apiece (tending to end in results that are skewed high or low), the answer in 2018 on the criminal docket was generally yes.
Justice Theis averaged 15.25 questions to appellants when she was writing the majority (and yes, that number was largely the product of three cases in which Justice Theis asked 27, 15 and 13 questions of appellants while writing the opinion). Justice Thomas averaged 6, Justice Neville 3, Justice Garman 2.67, Chief Justice Karmeier 2.4 and Justice Burke 2. Justice Burke led with 5.67 questions to appellees. The Chief Justice was next at 3.4. Justices Theis (1.75) and Thomas (1.67) were next, with the other Justices asking few questions of appellees. Justice Thomas led in rebuttal when writing the majority, averaging 0.67 questions to 0.5 for Justice Theis and 0.4 for Chief Justice Karmeier.
There were very few criminal special concurrences last year, so we move on to dissents. Once again, the same caveat: these are very small data sets. Justice Thomas averaged five questions to appellants, 3.67 to appellees and one in rebuttal when dissenting in a criminal case. Justice Burke asked eight questions of appellees, but none of anyone else. Chief Justice Karmeier and Justice Garman averaged four questions – Karmeier one to appellants and three to appellees, Garman two and two.
The obvious question after establishing that the party getting more questions is likely to lose is whether individual Justices tend to more heavily question the party the majority of the Court is likely to rule against or the party that Justice him- or herself disagrees with? When voting in the majority of an affirmance, five Justices last year more averaged more questions of the losing appellant: Thomas, Theis, Karmeier, Kilbride and Garman. Justice Burke was the lone exception, averaging 1.5 questions to appellants and 2.5 to appellees.
Things were different with reversals, however, with only two Justices more heavily questioning losing appellees: Chief Justice Karmeier and Justice Thomas.
When individual Justices were in the minority of a criminal affirmance, five Justices more heavily questioned the appellee – the party they thought should lose – rather than the appellant: Chief Justice Karmeier and Justices Theis, Thomas, Garman and Burke.
There were very few minority votes in criminal reversals last year, but the Chief Justice averaged one question to appellants and 1.5 to appellees. Justices Garman and Thomas averaged 2 questions to appellants and two to appellees.
Over much larger databases, asking the first question of either side is often an indication – particularly for Justices who seldom lead off – that the Justice in question is writing an opinion. Last year, Justice Thomas most often led off in criminal cases – ten for appellants, eleven for appellees and seven for rebuttals. Justice Theis was next with six appellants, six appellees and one rebuttal, followed by Justices Garman (four, five and one) and Burke (six, two and two). Aside from Justice Neville, who joined the Court during the year, the least frequent lead-off questioner was Justice Kilbride: zero appellants, one appellee and one rebuttal.
Join us back here next week as we turn our attention to a new topic.