For the last two weeks, we’ve been looking at the court-wide data for questions at oral argument. We discussed the academic research into oral argument questions, which demonstrates that at the U.S. Supreme Court, the party which will lose the case generally gets the most questions. We then looked at the data for the Illinois Supreme Court year by year since 2008. Today, we’re digging deeper on that theme: do individual Justices follow the court-wide pattern of more heavily questioning the party which will lose the case? What about when the Justice disagrees with the majority – does he or she more heavily question the party which is likely to lose the case, or the party he or she disagrees with?
First, we list every possible combination of results – the court’s result for the case and the Justice’s vote. The Court can affirm, reverse or return a split decision: “affirmed in part, reversed (or vacated, or modified) in part.” An individual Justice has the same three options. Matching the court results to the Justice’s votes, we get nine possible combinations: A(ffirm)A, AR(everse), A/AR(split decision); RA, RR, R/AR, and AR/A, AR/AR and AR/R. Since some of these combinations seldom occur in a given year, rather than reporting year by year, we’re combining all the data from 2008 to 2019.
We begin with Justice Garman’s results. Justice Garman clearly questions losing appellants more heavily when she joins the majority in an affirmance – 1.93 questions to appellants, 1.19 questions to appellees. When Justice Garman disagrees with an affirmance, she concentrates her questions on the appellees she believes should lose: 2.71 questions to appellees, 1 to appellants. As for the third possibility – the Court affirms where Justice Garman prefers a split decision: it has never happened.
When Justice Garman joins the majority in a reversal, she more heavily questions the losing appellees: 2.37 questions to 1.4 for appellants. When she dissents from a reversal, she more heavily questions the appellant she believes should lose – 3.25 for appellants, 1.13 for appellees. When she votes for a split decision while the court is reversing, she averages 2.5 to appellants and 1 to appellees. Finally, we turn to cases where the majority reaches a split decision. When Justice Garman agrees with that result, she averages more questions to appellees: 1.97 to appellees, 1.52 to appellants. When Justice Garman wants to affirm but the majority returns a split decision, she focuses on appellants – 3.0 to appellants, 0 to appellees. When the majority wants a split decision but Justice Garman wants to reverse, she more heavily focuses on the appellees: 3 to appellees, 1 question average to appellants.
So over the past thirteen years, the data is fairly clear on the civil side: when Justice Garman agrees with the majority, she averages more questions to the party which will lose. When she dissents, in whole or in part, she tends to focus on the party which she believes should lose.
Next time, we’ll address Justice Garman’s history in criminal cases.