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.
Today, we’re concluding our review of Justice Liu’s patterns in oral argument with a look at the criminal cases he’s participated in.
This week, we’re reviewing Justice Liu’s question patterns. As before, our purpose is both to determine whether Justice Liu follows the overall trend when he’s in the majority – more heavily questioning the party that will lose – but also what happens when Justice Liu is dissenting. Does he more heavily question the party that will lose the case, or the party he believes should lose the case?
When the Chief Justice joins an affirmance in criminal cases, she averages 3.49 questions to appellants and 1.53 questions to respondents. When she joins the majority in a reversal, she averages 3.22 questions to respondents, 2.68 to appellants. When she joins the majority in a split decision, she averages 4.23 questions to appellants, 1.55 to respondents.
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.
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.
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.
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.