For the past few weeks, we’ve been reviewing individual Justices’ questioning at oral argument in civil and criminal cases since the Court first started posting argument videos in 2016. The question is this: if as a general matter, the party likely to lose the case gets more questions at oral argument, can we use argument analytics to spot likely dissenters? In other words, does a Justice likely to dissent ask more questions of the side he or she thinks should lose or the side the majority thinks should lose? This week, we’re looking at the data for Justice Cuellar, civil cases first.
In civil cases where he joins the majority, Justice Cuellar diverges from the norm. Although the numbers are closer in reversals, he tends to more heavily question the appellant in all cases where he’s in the majority. In affirmances, he averages 5.52 questions to appellants and 4.54 to respondents. In reversals, he averages 5.11 to appellants and 4.97 to respondents. When Justice Cuellar joins the majority in a split decision – affirmed in part, reversed in part – he averages 6.43 questions to appellants and 5.57 to respondents.
But when he’s dissenting, there is a noticeable difference. When the majority affirms but he wants to reverse, he averages 16 questions to respondents and only eight to appellants. When the majority reverses but he wants to affirm, he averages 7.5 to appellants and 5.5 to respondents.
Join us back here later today as we review the data for Justice Cuellar’s record in criminal cases.