by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Two weeks ago the New York Times published a disgraceful article in which Supreme Court correspondent Adam Liptak uses misdirection and innuentdo to suggest, not only that Clarence Thomas is too lazy or stupid to do his job properly, but that he is a plagarist as well!
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.
Next to these opening paragraphs is a photo of Thomas with a caption that reads:
A recent analysis found that his majority opinions had the highest rate of overlaps with language in legal briefs submitted to the court in the last decade.
Back in the article Liptak goes on to say:
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.
And, just in case the reader misses the implication, he adds:
When Justice Thomas announces his majority opinions from the bench, he sometimes seems to be reading from materials prepared by others.
The pretext for this hatchet job is an obscure paper by a political science student named Adam Feldman, who, according to Liptak, used “anti-plagiarism software to detect similar wording in briefs and opinions from 1946 to 2014” and found that:
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.
Liptak bolsters this with two other statistical studies, one of which found that, “Thomas’s majority opinions incorporated language from friend-of-the-court briefs … more than any other justice,” and another that “looked at overlaps with lower-court opinions [and found that] Justice Thomas’s rate was the highest.”
By the time they’ve read all that, most readers are bound to conclude that, rather than doing his job, Thomas has been cribbing others’ work, or, even worse, letting his unsupervised law clerks to do it for him. However, it’s not the facts that lead readers to those conclusions; it’s Liptak’s deceitful use of language.
Liptak says that Thomas’s majority opinions “contain” or “incorporate” or “rely heavily” on language from briefs and lower court opinions; and he talks about “cribbing,” “overlaps,” and “borrowing”; but he never actually uses the word “plagiarism.” He can’t because, as he is well aware, nothing like plagiarism occurred. All Supreme Court opinions include quotations from the relevant briefs and lower court decisions, quotations that are explicitly identified as such and properly cited. Far from being something disreputable, including such quotations is a natural, indeed almost a necessary, part of writing an appellate court opinion. What these statistical analyses have “detected” is the fact that such quotations, which make up a small part of every Supreme Court opinion, make up a slightly larger (but still small) part of the majority opinions written by Justice Thomas.
Why do quotations make up a relatively high (though still small) part of Justice Thomas’s majority opinions? Contrary to the impression created by the headline and the article, there’s no reason to suppose that laziness is the reason, nor is there any reason to suppose laziness is the reason Thomas’s majority opinions tend to be relatively short. A careful reader can find the real reason for both of those facts in the article itself, where Liptak mentions in passing that:
Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, [Thomas] is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.
As for Thomas’s work ethic, Liptak also mentions in passing that:
In the last term, [Thomas] filed 30 dissents and concurrences, more than any other justice. Many concerned major constitutional questions, were longer than the majority opinions they critiqued and made novel points.
What this shows is that Justice Thomas has indeed been “dutiful,” but not in the dismissive sense in which Liptak uses the word. All of the justices on the Supreme Court swore an oath to support and defend the Constitution. None of them have taken that duty more seriously, or worked harder to discharge it, than Clarence Thomas.
So here are the facts:
Adam Liptak and the Times take these innocuous facts and spin them into a story that not only reinforces the left’s perennial slur against the Court’s only African-America justice — that he is lazy — but adds insult to injury by suggesting that he’s a plagiarist as well.
Mr. Liptak and the Times owe Clarence Thomas an apology. Unfortunately, they’re not going to give him one. When the Times’ Public Editor, Margaret Sullivan, asked Litak to respond to complaints about the article, he said:
Justice Thomas wrote majority opinions that shared language with source materials more than his colleagues did. This was true of parties’ briefs, friend-of-the-court briefs and lower-court decisions, according to three studies and related data that considered two separate time periods. That seemed unusual and worth exploring, and it opened a window onto the phenomenon of shared language in judicial decisions.
For her part, Sullivan says, “I thought the article’s language was quite careful, and, from what I can tell, accurate.” Careful is the right word all right. Liptak carefully avoids saying anything actually false and libelous, while nevertheless creating a false and derogatory impression in the reader’s mind. Even Sullivan admits that:
The overall impression … may well have overstated the case. Part of that was conveyed by the headline … which, while also accurate, seemed to suggest something close to plagiarism.