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

Yesterday, we looked at the likelihood that the first question to each side at oral argument in civil cases came from a Justice who would write an opinion – either the majority, a special concurrence or a dissent. Today, we turn our attention to the Court’s criminal cases between 2008 and 2016.

Beginning with appellants, Justice Thomas has written the majority opinion thirty times when he led off questioning of the appellant. Next if Justice Garman at 26. The remainder of the Justices are bunched together – Justice Freeman wrote 16 majorities, Chief Justice Karmeier wrote 15, Chief Justice Fitzgerald and Justice Burke have written twelve and Justice Theis has written 11. The most frequent dissenters when each Justice leads off against the appellants are Justices Thomas and Burke, with five dissents apiece. Justice Thomas leads in terms of cases where he asked the first question of appellant but didn’t write an opinion with 131. Justice Freeman is next at 67, followed by Justice Garman with 50 and Justices Burke and Theis with 40 apiece.

In Table 435, we report the percentage likelihood that each Justice will write an opinion when he or she asks the first question of a criminal appellant. Justice Garman leads at 37.5%. Several Justices are close behind, including Chief Justice Karmeier (33.97%), Justice Burke (31.03%) and Chief Justice Fitzgerald (30.23%). Justice Theis is next, writing in 27.27% of cases where she asked the first question of appellants. Justice Kilbride follows at 26.67%. The likelihood across the whole Court of the first question coming from a Justice who is writing is 27.86%.

Among appellees, once again Justice Thomas wrote the most majority opinions when he was first questioner with 22. Only two other Justices were in double figures – Chief Justice Karmeier with 11 and Justice Garman with 10. Justice Burke wrote nine majority opinions when she began the questioning of appellees, as well as five special concurrences and six dissents (both of those numbers were the highest on the Court).

The most frequent writer in cases where he asked the appellees the first question was Chief Justice Karmeier at 41.38%. Justice Burke was next, writing an opinion in 39.22% of cases where she led off. The probabilities of the remaining Justices were quite close, and significantly behind those two Justices. Justice Freeman wrote in 26.92% of cases, Justice Thomas in 25.23%, Justice Garman in 23.81% of cases, Justice Theis in 22.58%, and Justice Kilbride only 20% of the time.

Join us back here next Tuesday as we begin work on another question in our ongoing analysis of the Court’s oral arguments.

Image courtesy of Flickr by Benjamin Esham (no changes).