Saturday, August 29, 2015

The New York Times misrepresents Justice Thomas's writing

The New York Times posts this seemingly damning story about Justice Clarence Thomas on its homepage (via Orin Kerr):

The NYT article says:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.
Liptak explains that Thomas's "distinctive role" is that his cases tend to be "dogs" — boring cases filled with technicalities. Liptak goes on:
Justice Thomas’s seven majority opinions in the last term were on average just 12 pages long and contained little but a summary of the facts and terse summaries of the relevant statutes and precedents. Since opinions are signed by justices but often drafted by law clerks, it may be that any borrowed language was the work of Justice Thomas’s clerks. . . .

[Some have] questioned the high levels of apparent cribbing from briefs in Supreme Court opinions, a phenomenon not limited to Justice Thomas.

“It seems like they’re using briefs as a template for how they’re going to put the opinion together,” said Adam Feldman, a lawyer and doctoral candidate in political science at the University of Southern California. “They’re taking at face value ways of framing opinions that are not their own.”

Mr. Feldman conducted an extensive analysis of overlapping language, using anti-plagiarism software to detect similar wording in briefs and opinions from 1946 to 2014. The study and related findings were based on almost 10,000 briefs and looked for passages of at least six words with an overlap of at least 80 percent.

Justice Thomas’s majority opinions had the highest rate of overlaps with language in parties’ briefs in the decade since Chief Justice John G. Roberts Jr. joined the court. . . .

Cribbing from briefs is commonplace among trial-court judges, though some appeals court judges frown on it.

“We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own,” Judge Frank Easterbrook of the federal appeals court in Chicago wrote in 1990.
Unlike the Times article, Orin Kerr at Volokh Conspiracy shows us the actual findings from the article described in boldface above:
Thomas: 11.29%
Sotomayor: 11.04%
Ginsburg: 10.55%
Alito: 9.48%
Roberts: 9.20%
Scalia: 8.74%
Kennedy: 8.36%
Breyer: 7.56%
Kagan: 7.13%
Kerr points out:
The numbers seem at odds with Liptak’s claim. Yes, Thomas has the highest shared language percentage. But it’s bizarre to say that his numbers are “unusually high,” that Thomas “relies heavily” on outside language or that “many” of his words are “not his own.” All of the Justices share language from the briefs at roughly similar rates: about 7 to 11 words out of 100. And the difference between Thomas and Sotomayor is a rounding error. It’s only 2.5 words out of 1,000. In a typical majority opinion, that’s probably the difference between including a short parenthetical quote from a precedent and leaving it out.

Liptak relies on two additional studies. These two studies looked at three Terms from over a decade ago: 2002, 2003, and 2004. Only five of the current Justices were on the Court then, so we have no idea how the Chief, Alito, Sotomayor or Kagan might measure up. They show Justice Thomas sharing language with lower court opinions and amicus briefs slightly more than other Justices. But the differences strike me as pretty modest. . . .

Justice Thomas does seem to have shared language from amicus briefs slightly more than other Justices in 2002-04. But the differences are modest. Justice Thomas shared 4.4% of the language, and Justice Ginsburg shared 3.5%. That’s a difference, but it’s not a big one.
(See Kerr's post for more details.)

Kerr concludes:
I don’t see how these studies support the Times’s presentation of Justice Thomas as an outlier.

Even if these small differences are indicators of something, I’m not sure what that thing is. Are marginally higher numbers numbers supposed to show that Justice Thomas is taking his ideas from elsewhere more than the other Justices? Or are they supposed to show that Justice Thomas likes to include more or longer quotations from precedents and from the lower court opinion, perhaps giving the reader slightly more doctrinal context than do other Justices? As far as I can tell, the studies that look for word overlap don’t distinguish between these very different possibilities.
Yep. The Times article is embarrassingly skewed.

If the one with the highest amount of overlap with the briefs or lower-court opinions were Ginsburg or Sotomayor, the New York Times would tell us it's a sign of her great humility in drawing on the wisdom of others instead of arrogantly trying to remake the law.