How Likely Is It That the First Question in a Civil Case Comes From a Justice Writing the Majority, a Concurrence or a Dissent?

Today, we turn our analysis of the Illinois Supreme Court’s oral arguments between 2008 and 2016 to a new question: how likely is it that the Justice who asks the first question in a civil case is writing an opinion?

In Table 433 below, we report the percentage of instances in civil cases in which each Justice asked the first question of appellant and was writing the majority, a special concurrence, or a dissent. For example, on twenty-three occasions, Justice Burke asked the first question of appellant, and wound up writing the majority opinion. Twice she wrote a concurrence, and five times she dissented. In comparison, she led off the questioning of appellant yet didn’t write an opinion in thirty-one cases. Justice Thomas most frequently asked the first question with 124. Justice Freeman was next at 45, followed by Justice Freeman at 38 and Justice Theis at 35. Justice Thomas wrote the majority opinion and led off questioning of the appellant 29 times. Justice Burke was second at 23, followed by Justice Theis at 18. Justice Freeman was the most frequent dissenter, leading off the questioning of appellants and writing a dissent in eight cases to Justice Thomas’ seven.

Overall, when Justice Burke asked the first question of appellants, she wrote an opinion 49.18% of the time. Justice Karmeier was second, writing an opinion 47.37% of the time when he led off. Justice Theis was third at 38.6%. Justice Garman was fourth at 29.63%. This measure was the least powerful for two of the most active questioners on the Court. Justice Thomas wrote in 23.46% of cases when he led off to the appellants, and Chief Justice Fitzgerald wrote in 23.08% of cases. No Justice was under 20%, and courtwide, the first questioner to appellants wrote an opinion in 31.07% of cases.

So what about appellees? Justice Thomas led, writing the majority twen ty-two times when he asked the first question of appellees. Only two other Justices were in double figures – Justice Garman at 12 and Justice Burke at 10. Justices Garman and Freeman led in dissents, with each writing six dissents in cases where they began the questioning. Overall, 71 times the first question to an appellee came from the author of the majority opinion. Seventeen times, it came from the author of a dissent.

We report the percentages in Table 434. Three Justices – Chief Justice Karmeier and Justices Burke and Thomas – are more likely to be writing when they ask the first question of appellant than when they lead off with the appellee. For the other four Justices, lead-off to the appellee is a more powerful predictor of writing an opinion – often by ten to twenty percentage points. Justice Kilbride wrote an opinion in 41.18% of cases where he led off questioning of appellee. Justice Theis was right behind at 40.91%, and Justice Garman was at 39.13%. Three more Justices were tightly bunched right behind Justice Garman – Chief Justice Fitzgerald at 36.36%, Chief Justice Karmeier at 36% and Justice Freeman at 35.48%. Courtwide, the likelihood in civil cases that the first question to appellees came from a Justice writing an opinion was 31.33%.

Join us back here tomorrow when we look at the Court’s oral arguments in criminal cases.

Image courtesy of Flickr by Ryan Van Etten (no changes).