Last time, we reviewed the Court’s oral arguments in criminal cases at the macro level – data on the whole court. This time, we’re going micro – what can we predict about individual Justices’ votes and writing based on the oral arguments?
In Table 1024, we report average questions per Justice in criminal cases. All the Justices except Justice Liu averaged more questions – particularly when adding the rebuttal to the appellant’s opening segment – to appellants than appellees. Justice Liu averaged 3.76 questions to appellants and 4.82 to appellees. Pro tem Justices, who sat on every case in 2018, averaged 1.84 questions to appellants, 1.72 to appellees and 0.26 to rebuttals.
When writing the majority opinion, Justices’ questioning increased across the board. Three Justices – the Chief Justice and Justices Corrigan and Liu – averaged more questions to appellees when writing the majority – while Justices Chin and Cuellar averaged fewer questions. Justice Chin averaged the highest number of questions to appellants when writing a criminal majority – 6.13. Justice Corrigan averaged the most questions to appellees in the second segment of argument – 7.5. Justice Chin averaged the most questions in rebuttal when writing the majority – 1.13.
Only three Justices wrote concurrences in criminal cases during these years – Justice Corrigan averaged 3.5 questions to appellants, 0.5 to appellees and 1 in rebuttal. Justice Chin averaged four to appellants and two to appellees. Justice Liu was quite active in cases where he wrote criminal concurrences – seven questions to appellants, 20.5 to appellees and 3.5 in rebuttal.
When writing dissents, Justices Kruger and Chin asked no questions. The Chief Justice averaged five questions to appellants and two to appellees. Justice Liu averaged 4.67 questions to appellants, 13.78 to appellees and 1.56 in rebuttals. Justice Cuellar averaged four questions to appellants, seven to appellees and three in rebuttal. Pro tems writing dissents averaged two questions to appellants, 2.5 to appellees and one in rebuttal.
When Justices were joining the majority of a criminal affirmance, every Justice averaged more questions to appellants than appellees, just as we would expect. Only Justice Liu was close – 3.68 questions to appellants, 3.4 to appellees.
Only Justice Chin and the pro tems who joined the Court for one case at a time throughout 2018 averaged more questions to appellants than appellees in reversals.
When dissenting from a criminal affirmance, four Justices – Corrigan, Kruger, Liu and the pro tems – averaged more questions to appellants – the party who lost the overall case – than to the appellees who the individual Justices voted against.
Justices dissenting from a reversal were different – only Justices Liu and the pro tems averaged more questions to the parties they voted for than the parties who won the case.
Finally, we review how often each Justice asked the first question in each segment of the argument – appellant, appellee and rebuttal. Justice Corrigan led with eleven firsts to appellant, fourteen in rebuttal and twelve to appellees. Justice Liu had twelve firsts to appellants, five in rebuttal and ten to appellees. Justice Cuellar had twelve firsts with appellants, three with rebuttals and five to appellees. Justice Chin had eight firsts to appellants, six to rebuttals and five to appellees. Justice Kruger had five firsts with appellants, two in rebuttals and six to appellees. Chief Justice Cantil-Sakauye had two firsts with appellants, three to rebuttals and five to appellees.
Join us back here next Tuesday as we turn our attention to a new question.