This week, we’re reviewing Justice Theis’ history in oral arguments in civil cases. Having established that the party which gets more questions at argument overall is likely to lose, we’re trying to determine (1) whether each individual Justice follows that same pattern when she or he agrees with the majority; and (2) when he or she dissents, does the Justice more heavily question the side the Justice thinks should lose, or the side the majority believes should lose? This week, we’re looking at the data for Justice Theis, civil cases first.
When Justice Theis agrees with the majority in a civil affirmance, she follows the expected pattern, averaging 3.98 questions to appellants and 1.54 to appellees. She follows the same pattern in reversals, but just barely, averaging 2.27 questions to the appellees (the losing party) and 2.24 to appellants. When she joins the majority in a mixed result – affirmed in part, reversed in part – she averages 2.91 questions to appellees and 2.84 to appellants.
When Justice Theis dissents in a civil case, she shows a clear tendency to more heavily question the side she is voting against rather than the eventual loser. When the majority affirms but she votes to reverse, she averages 4.57 questions to appellees and only 0.29 to appellants. When she dissents from a reversal, she averages 3.38 questions to appellants and 0.88 to appellees. Only two other combinations of result and vote appear in the data, both very small samples. When the majority returns a split result and Justice Theis votes to affirm, she averages 5.5 questions to both appellants and appellees. In the very few cases where the majority affirms but Justice Theis wants to reverse in part only, she has asked no questions of either side.
Join us back here next time as we turn our attention to Justice Theis’ data in criminal cases.