United States: Does The California Supreme Court Average More Questions To The Losing Side?

Last Updated: July 26 2017
Article by Kirk Jenkins

Yesterday (July 20, 2017), for post no. 1,000 we reviewed the academic literature on question-counting in oral arguments, and began comparing the past year, May 2016-May 2017, at the California and Illinois Supreme Courts.  Every researcher to date – including us in our study of the Illinois Supreme Court 2008-2016 – found that getting more questions than your opponent was generally a sign you were in trouble.  So what did we find in California?

In Table 254, we compare the data for both Courts in affirmances.  We see the two courts are comparable: five of the seven California Supreme Court Justices averaged more questions to the appellant (the losing party) in civil affirmances.  Six of the seven Illinois Supreme Court Justices averaged more questions to the losing party.

Justice Corrigan led the Court in questions to appellants in civil affirmances with 6.06.  Justices Cuellar and Liu were next, averaging 5.6 and 5.11 questions to appellants.  The Chief Justice averaged 5.05 questions to appellants.  Justice Kruger averaged 4.06, Justice Chin 3.94 and Justice Werdegar averaged 3.58 questions to appellants.

Nearly all Illinois Supreme Court Justices averaged substantially fewer questions to appellants in civil affirmances than California Justices.  Justice Theis averaged 6.62.  Justice Garman averaged 2.92.  Justice Thomas and Chief Justice Karmeier averaged 1.75 and 1.08, respectively.  Justice Burke averaged 1 question to appellants, Justice Freeman 0.54 and Justice Kilbride 0.25.

Justice Liu led the California Justices in questions to respondents (the California term) in civil affirmances.  Justice Werdegar was next at 5.21 questions per argument.  Justice Cuellar averaged 4.25, and the remaining four Justices all averaged between two and three questions to respondents: Chief Justice Cantil-Sakauye (2.85), Justice Kruger (2.65), Justice Chin (2.5) and Justice Corrigan (2.39).

The Illinois Supreme Court Justices asked virtually nothing of appellees in civil affirmances.  Justice Thomas averaged 1.5 questions.  Justice Theis asked 1.31, Justice Garman averaged 1.08, Justice Kilbride 0.42, Justice Burke 0.36 and Chief Justice Karmeier averaged 0.25.

So to summarize: California Justices Corrigan, Kruger, Chin, Cuellar and Chief Justice Cantil-Sakauye averaged more questions to the losing party in the past year in civil affirmances.  Illinois Justices Burke, Garman, Freeman, Thomas, Theis and Chief Justice Karmeier averaged more questions to the losing party in affirmances.

We report the data for civil reversals in Table 255.

Justice Liu led the Court in questions to appellants in civil reversals with 6.41.  Justice Werdegar averaged 5.67. Justice Cuellar was right behind, averaging 5.5.  Justice Kruger averaged 3.93, Justice Chin 3.48, Chief Justice Cantil-Sakauye 3.39 and Justice Corrigan averaged 2.1.

Once again, the Illinois Supreme Court Justices were less active nearly across the board.  Justice Thomas averaged 3.7 questions to appellants in civil reversals.  Justice Burke and Chief Justice Karmeier averaged 1.56 and 1.2 questions to appellants.  Justice Garman averaged 0.8 questions to appellants, Justice Theis averaged 0.4, and Chief Justice Karmeier asked appellants in civil reversals no questions at all.

Justice Liu led the California Justices, averaging 7.45 questions to respondents in civil reversals.  Justice Corrigan averaged 6.48.  Justice Cuellar averaged 5.86 questions.  Justice Werdegar and Chief Justice Cantil-Sakauye were nearly tied – 3.87 questions for Justice Werdegar and 3.86 questions for the Chief Justice.  Justice Kruger averaged 2.71 questions to respondents, and Justice Chin averaged 2.23.

Justice Thomas led the Illinois Justices, averaging 4.8 questions to appellees in civil reversals.  Justice Theis averaged 3.1 questions.  Chief Justice Karmeier and Justice Garman averaged two questions apiece, while Justice Burke averaged 1.67, Justice Kilbride averaged 0.7 and Justice Freeman averaged 0.25.

We summarize again: four of the seven Justices of the California Supreme Court averaged more questions to the losing side in civil reversals: Chief Justice Cantil-Sakauye and Justices Corrigan, Cuellar and Liu.  Six of the seven Justices of the Illinois Supreme Court averaged more questions to the losing party: Chief Justice Karmeier and Justices Burke, Garman, Kilbride, Thomas and Theis.

So what's the bottom line – with only four of the seven Justices of the California Supreme Court averaging more questions to the losing party in reversals, can we say that the California Supreme Court is the first studied at length which didn't match the same pattern as the others, with the losing party averaging more questions?

The answer is "maybe."  In both California and Illinois, the majority of the Court fits the pattern: the losing party gets more questions.  The pattern holds with aggregate numbers.  In affirmances, the California Supreme Court averaged 33.4 questions to appellants and 26.8 to respondents.  The Illinois Supreme Court averaged 14.16 questions to appellants and 5.15 to appellees.  Among reversals, the California Supreme Court averaged 32.46 questions to respondents and 30.48 to appellants.  The Illinois Supreme Court averaged 14.52 questions to appellees and 8.04 to appellants.

The California result with reversals is interesting, but also reminiscent of the concept of regression to the mean.  The best description of that statistical concept I've ever heard came from the TV series Numb3rs.  Imagine you throw a wadded-up piece of paper at a waste basket.  You make the basket.  Then you do it three more times.  Have you beaten the odds?  Well, no – because as you keep trying, your completion rate will converge on 50%.

So it will be interesting to see where the California data goes in the years to come.  A slight majority of California Justices more heavily question the losing party in reversals, but as the years go by, will the data move towards the trend of every other court researchers have studied, with more and more Justices averaging more question to the losing party?

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