Block on Trump's Asylum Ban Upheld by Supreme Court
Justice Thomas isn't the most verbose Supreme Court Justice. But of the little he says, much of it is not his own. That's the implication of a recent piece by The New York Times' veteran court reporter, Adam Liptak, which examines the Justice's frequent use of "borrowed language" from Supreme Court merits briefs.
That story didn't sit well with plenty of legal commentators, however. George Washington Law professor Orin Kerr, for example, noted that Justice Thomas's rate of shared language is not nearly as high as Liptak makes it seem. So, who is right and does it even matter?
The Continued Impact of the Feldman Study
Liptak and Kerr's squabble comes on the heals of a new study comparing language between Court briefs and final opinions. In mid-August, Adam Feldman, a PhD candidate at the University of Southern California, released a study analyzing linguistic overlap between the two and what factors were most closely associated with influencing the language of Court opinions.
The study was fascinating and garnered a good amount of press attention. Here at FindLaw, we looked at what Feldman's piece says about good legal writing (short sentences, active verbs) and who the most effective Supreme Court litigators were (John Roberts, before he was Chief Justice). Comparing the study to billing rates, we could even find out how much the best SCOTUS lawyers charged (between $1,100 and $1,800 an hour).
From Lawyers to Justices
Now, Liptak has extended that analysis to see which individual Justices' opinions shared the most language with merits briefs. That analysis wasn't in the original study, but Feldman was willing to run the numbers for Liptak. The results, Liptak wrote, "illuminate [Justice Thomas's] distinctive role on the court." It's not a flattering light.
The gist? Justice Thomas doesn't
do his own work. His opinions share language with briefs "at unusually high
rates." When he
announces an opinion, he often "seems to be reading from materials prepared by others." His
work has "high levels of apparent cribbing."
Liptak stops just short of calling Justice Thomas an outright plagiarist, saying half-heartedly that the Justice's writings "appear to rely heavily" on briefs but "do not suggest misconduct."
Justice Thomas Does Not Stand Out
From reading Liptak's piece, you would think Thomas's rate of shared language was far outside the norm. It's not. In fact, simply changing a paragraph in one of his opinions could have dropped him from the lead. These are the percentages of opinions that share language with merits briefs, by Justice:
There was just a four percentage point difference between the Justices with the most and least shared language. Sotomayor had almost an identical rate as Thomas, but received only one mention in Liptak's piece. In The Washington Post's Volokh Conspiracy blog, Kerr called out Liptak for his "misleading" and "unfair" piece.
Does It Matter?
Does Thomas's linguistic overlap matter? Does Liptak's portrayal of it? It depends. First, there's Liptak's characterization. Kerr describes it as dishonest pandering to the Times' liberal readership. Its focus on Justice Thomas alone certainly seems unjustified. Indeed, Justice Thomas has spoken extensively about how, as a successful African American man, his accomplishments are often discounted or attributed to others -- affirmative action, patronizing professors, his law clerks. Liptak's piece could be taken as part of a similar process.
As for the language overlap
itself, one would need to look more closely to see just how Justice Thomas, or
any other Justice, is actually using merits briefs. As Kerr noted,
simply quoting the same precedent counts as linguistic overlap.
Further, Thomas's spot at the top might be a result of his isolation on the Court. One of the most ideologically peculiar Justices, he often authors the least controversial opinions. As Feldman found, "as cases are perceived as more important to the Court, the Court is likely to share less opinion language with the briefs" -- and Justice Thomas rarely writes important opinions.