A few weeks ago, we established that court-wide, the party which is likely to lose tends to get the most questions in oral argument. Now, we’re investigating individual Justices’ records – when the Justice agrees with the majority, does he or she follow the usual pattern, and when he or she doesn’t agree, does the Justice more heavily question that party that will lose, or the party he or she thinks should lose? This time, we’re looking at Justice Kilbride’s history – first up, civil cases.
In civil affirmances where Justice Kilbride is with the majority, Justice Kilbride more heavily questions the losing appellant than the winning appellee – 1.11 to 0.76. When Justice Kilbride joins the majority in a civil reversal, his numbers are close to even – 1.22 questions to appellees, 1.12 to appellants. When Justice Kilbride joins the majority in a split decision – “affirmed in part, reversed in part” – he averages 1.18 questions to appellees and 0.98 to appellants.
So now we turn to dissents. When Justice Kilbride dissents from a civil affirmance, he more heavily questions the appellant who is going to lose – 1.38 to 0.85 for appellees. When he dissents from a civil reversal, the pattern reverses – 1.3 questions to appellants, 0.44 to appellees. The other combinations of result and vote are small sample sizes – when Justice Kilbride wants a split decision but the majority affirms, he averages two questions to appellees and none to appellants. When Justice Kilbride supports a split decision but the Court reverses completely, he averages 2.5 questions to appellants, none to appellees. When the majority settles on a split decision but Justice Kilbride votes to affirm, he averages 1.5 questions to appellees and 1 to appellants.
Join us back here tomorrow as we review Justice Kilbride’s criminal cases.