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Saturday, August 29, 2015

Borrowing from Amicus Briefs: Controversial Coverage

The New York Times has an article claiming that Justice Clarence Thomas uses language from amicus briefs more often than his colleagues.  At The Volokh Conspiracy, Orin Kerr knocks it down:
If you look at the data, though, they don’t support the conclusion that Justice Thomas is an outlier. Let’s look at the studies Liptak relies on in his article.

First up is the Feldman study, which gets the most attention in Liptak’s paper. Feldman compared how much of majority opinions by different Justices contained language from the merits briefs. Feldman did not include the Justice-by-Justice numbers in his paper, but he calculated them for Liptak and he kindly shared the results with me by e-mail. Here are the percentages in descending order:

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%

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.
At Mediatie, Alex Griswold is even blunter:
But only a few paragraphs later, Liptak gives a perfectly mundane reason why Thomas uses so much borrowed language: “…he 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.
 So in other words, Thomas uses language from submitted briefs barely more often than his liberal peers, borrowing language from submitted briefs is extremely common, and Thomas has a perfectly reasonable explanation for why he uses borrowed language slightly more often. But instead of a generic take on how often the Supreme Court as an institution relies on briefs, the Times singled out Thomas and falsely said in its lede that he used borrowed language at “unusually high rates.
 I won’t dance around the issue; this was a partisan attack, plain and simple. There was no journalistic reason to single out Thomas, but plenty of ideological reasons to do so. So rather than write a wonky piece with a dispassionate headline, the Times and Liptak went for partisan clickbait, facts be damned