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 week, we’re looking at Chief Justice Cantil-Sakauye’s data.
Today we’re reviewing Justice Corrigan’s questioning data in criminal cases.
For the last two weeks, we’ve been looking at the Supreme Court’s question patterns at a court-wide level. We reviewed the academic literature studying oral argument questions at the U.S. Supreme Court, which has concluded that the party which will lose averages the most questions. We then reviewed the year-by-year data at the California Supreme Court to look for similar patterns.
Now, we’re beginning to review the data one Justice at a time. Does each individual Justice match the usual pattern – more questions to the loser – when he or she agrees with the majority? What about when she or he doesn’t agree with the majority – does she more heavily question the party which will lose the case, or the party she thinks should lose the case? We divide the case data by every possible combination of court result and a Justice’s vote – affirmances, reversals and split decisions (“affirmed in part, reversed in part”).
We begin, in light of Justice Chin’s recent retirement, with Justice Corrigan’s record in civil cases. When Justice Corrigan joins the majority in an affirmance, she clearly questions appellants more heavily 4.98 to 0.98 for respondents. When the majority affirms but Justice Corrigan wants to reverse, she more heavily questions the respondent – 8 questions for respondents and an average of only 1.33 for appellants. When the court affirms but Justice Corrigan wants a split decision, she averages 9.5 questions to respondents and 5 to appellants.
When Justice Corrigan joins the majority in a reversal, she more heavily questions the losing respondent, although the gap between loser and winner is much less than for affirmances: 4.38 questions for respondents, 3.31 to appellants. When Justice Corrigan wants to affirm but the majority reverses, she concentrates on appellants: 5.67 questions to appellants, 1.33 to respondents. Although there have been few reversals where Justice Corrigan supported a split decision, she concentrates on respondents: 5.0 to respondents, 0 to appellants. Finally, where Justice Corrigan joins the majority in a split decision, she concentrates on the appellant: 3 questions to appellants, 1.93 to respondents.
Join us back here tomorrow as we review Justice Corrigan’s data in criminal cases.
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Now we turn to the data for the criminal docket. In outright reversals, respondents averaged more questions than appellants in three of five years between 2016 and 2020 – 2016, 2018 and 2020.
We mentioned in a previous post that there was some indication – notwithstanding the tiny data sets – that partial reversals might have an unexpected impact on the question patterns. Turning to split decisions in criminal cases, we find that appellants average more questions in all five years between 2016 and 2020.
Join us back here next Thursday as we turn our attention to further oral argument data.
Image courtesy of Flickr by Ian Sane (no changes).
Last week, we reviewed the academic literature on oral argument analytics and compared the data on oral arguments at the California Supreme Court. Last week, we aggregated the data on reversals – reversals plus partial reversals (“affirmed in part, reversed in part”). This week, we’re checking if the oral argument data is any different for partial and complete reversals.
We report the data on outright reversals in Table 1456 below. We expect the losing party to get more questions, and sure enough, the losing appellees get more questions in four of five years between 2016 and 2020.
However, in partial reversals, appellees only received more questions in one of five years – 2017.
Join us back here tomorrow as we turn our attention to the criminal docket.
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Yesterday, we surveyed the academic literature in oral argument analytics and then reviewed the data for 2016-2020 civil cases from the Supreme Court. Today, we’re looking at the criminal docket.
Between its earliest posted arguments in 2016 and the end of August, the Court asked 8,256 questions in criminal, quasi-criminal, juvenile and mental health matters: 4,514 of appellants and 3,742 of respondents. In every individual year during that period, questions to appellants have predominated.
Next, we separate out the affirmances – winning respondents versus losing appellants. Appellants averaged more questions each year.
Finally, we review the data for reversals. Curiously, losing respondents only received more questions than appellants in two of five years.
Join us back here next week as we continue our review of the past five years of oral arguments.
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Today, we begin a new subject in our ongoing analytics study of the Court’s decision making – oral arguments. Although the academic community has been producing analytics studies of appellate decision making for a century, the analytics study of oral arguments is a much more recent development.
[We repeat the next five paragraphs for the benefit of any readers who don’t also read our sister blog the Illinois Supreme Court Review, where this material was published earlier this week. For readers who do, you can skip the following five paragraphs.]
The earliest study appears to be Sarah Levien Shullman’s 2004 article for the Journal of Appellate Practice and Process. Shullman analyzed oral arguments in ten cases at the United States Supreme Court, noting each question asked by the Justices and assigning a score from one to five to each depending on how helpful or hostile she considered the question to be. Once seven of the ten cases had been decided, she divided her observations according to whether the Justice ultimately voted for or against the party. Based upon her data, she made predictions as to the ultimate result in the three remaining cases. Shullman concluded that it was possible to predict the result in most cases by a simple measure – the party being asked the most questions generally lost.
John Roberts addressed the issue of oral argument the year after Shullman’s study appeared. Then-Judge Roberts (at the time, two years into his tenure on the D.C. Circuit) noted the number of questions asked in the first and last cases of each of the seven argument sessions in the Supreme Court’s 1980 Term and the first and last cases in each of the seven argument sessions in the 2003 Term. Like Shullman, Roberts found that the losing side was almost always asked more questions. So apparently “the secret to successful advocacy is simply to get the Court to ask your opponent more questions,” Judge Roberts wrote.
Professor Lawrence S. Wrightsman, a leading scholar in the field of psychology and the law, took an empirical look at U. S. Supreme Court oral arguments in a 2008 book. Professor Wrightsman chose twenty-four cases from the Supreme Court’s 2004 term, dividing the group according to whether they involved what he called ideological or non-ideological issues. He then analyzed the number and tone of the Justices’ questions to each side, classifying questions as either sympathetic or hostile. Professor Wrightsman concluded that simple question counts were not a highly accurate predictor of ultimate case results unless the analyst also took into account the tone and content of the question.
Timothy Johnson and three other professors published their analysis in 2009. Johnson and his colleagues examined transcripts from every Supreme Court case decided between 1979 and 1995 – more than 2,000 hours of argument in all, and nearly 340,000 questions from the Justices. The researchers isolated data on the number of questions asked by each Justice in each argument, along with the average number of words used in each question. The study concluded, after controlling for other factors that might explain case outcomes, all other factors being equal, the party asked more questions generally lost the case.
Professors Lee Epstein and William M. Landes and Judge Richard A. Posner published their study in 2010. Epstein, Landes and Posner used Professor Johnson’s database, tracking the number of questions and average words used by each Justice. Like Professor Johnson and his colleagues, they concluded that the more questions a Justice asks, all else being equal, the more likely the Justice will vote against the party, and the greater the difference between total questions asked to each side, the more likely a lopsided result is.
[ISCR readers resume here.]
The California Supreme Court began posting videos and audios of its oral arguments in 2016. Since that time, the Court has asked 8,569 questions in civil cases – 4,450 of appellants and 4,119 of respondents. Appellants received the most questions in every year between 2016 and 2020 (so far).
In the next two Tables, we divide this data between affirmances and reversals. First up – civil affirmances. Did the (losing) appellants receive more questions, as the research would lead us to expect?
The answer is yes. Losing appellants in civil cases averaged more questions in every year from 2016 to 2020.
Finally, we review the data for full and partial reversals, where the respondents are the losing party. For four of the last five years, we see the expected relationship between average questions for the winner and loser – the respondents average more questions. The only exception was 2019.
Join us back here tomorrow as we review the same metrics for the Court’s arguments in criminal cases.
Image courtesy of Flickr by Becky Matsubara (no changes).
Between 2005 and 2019, the Supreme Court decided 53 civil constitutional law cases. Thirty-two of those cases involved challenges to state government actions. Ten cases involved claims of individual rights. Seven cases involved civil procedure and judicial issues. Finally, four cases related to challenges to local government actions.
Join us back here next Thursday as we proceed to a new issue.
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In the past two weeks, we’ve taken a deeper look at the Supreme Court’s cases in two areas of law, asking which sub-areas those cases fall in. Today, we’re moving on to another subject – civil constitutional law cases.
Between 1990 and 2004, the Supreme Court decided ninety-six civil constitutional law cases. Just short of half of those cases – forty-seven in all – dealt with challenges to state government actions. Twenty-three cases involved claims of individual rights. Nineteen related to civil procedural and judicial issues, and seven cases were challenges to local government actions.
Join us back here tomorrow as we complete our review of the Court’s constitutional law docket.
Image courtesy of Flickr by Becky Matsubara (no changes).
Last week, we drilled down on the Supreme Court’s tort cases, looking year by year at what sub-areas of tort law produced the Court’s cases. This week, we’re doing the same thing for the Court’s docket of insurance cases. We’re dividing the field of insurance law into six sub-areas: coverage; separate torts against insurers (outside of coverage under the policy – mostly bad faith); exclusions; defenses; regulatory; and “other.”
We begin with the first fifteen years of our period of study: 1990-2004. During those years, the Court decided 51 insurance law cases. Thirty-one of those cases involved coverage questions. Coverage cases were roughly flat throughout the period – usually 1-3 cases a year, with the exception of four cases in 2001. The next most common sub-issues on the Court’s docket were separate torts and regulatory issues – six each. The Court decided only four cases involving defenses to coverage. The Court decided two cases involving exclusions and two which fell in the “other” category.
Join us back here tomorrow as we review the data for the years 2005 through 2019.
Image courtesy of Flickr by Don Graham (no changes).