On Friday, The New York Times published an article clearly aimed at portraying conservative Supreme Court justice Clarence Thomas as an unoriginal thinker, if not an outright plagiarist. But a closer look at the statistics cited in the piece, entitled “Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own,” indicates that The Times grossly overstated its case.
In the article, Times reporter Adam Liptak cites three studies that used linguistic software to measure what percentage of justices’ opinions use words cribbed from briefs submitted to the court.
According to Liptak, Thomas used words from those briefs at an “unusually high” rate compared to other justice. The black justice’s opinions also “appear to rely heavily on the words of others,” the reporter wrote.
The framing of the piece fits a common accusation leveled against Thomas, who began serving on the highest court in 1991. His critics, mostly liberals, claim that Thomas merely follows the lead of other conservative justices, such as Antonin Scalia and Samuel Alito.
Liptak points to Thomas’ well-known reputation for rarely asking questions during oral arguments. Thomas has said he sees little value in oral arguments and is introverted by nature. His critics spin his silence as evidence that he is not as bright as his colleagues.
But while the studies Liptak cites do show that Thomas’ opinions utilize a higher percentage of words from court briefs than do other justices, the gap is minuscule.
Citing a study from Adam Feldman, an attorney and doctoral student in political science at the University of Southern California, Liptak writes:
Over the years, the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent. Justice Thomas’s rate was 11.3 percent. Justice Sonia Sotomayor’s was 11 percent, and Justice Ruth Bader Ginsburg’s 10.5 percent. All three sometimes produce institutional prose.
That means that Thomas relied on words from court briefs at about the same rate as Ginsburg and Sotomayor, two of the Court’s most liberal justices.
Liptak relied on two other studies, both of which analyzed what percentage of opinions released during the 2002, 2003, and 2004 court sessions overlapped with text from amicus briefs.
Again, Thomas had the highest overlap rate — 4.4 percent. But Ginsberg followed closely at a 3.5 percent overlap rate. Because of the time period used in the study, current justices John Roberts, Samuel Alito, Sotomayor and Elena Kagan were not included in the analysis.
The Times piece was roundly criticized Friday for a variety of reasons. Some argued that Liptak offered an overblown interpretation of the underlying studies. Others claimed it was overt racism to imply that the court’s only black justice plagiarizes more than others on the bench.
Kevin Drum, a blogger at the liberal website, Mother Jones, cast doubt on Liptak’s methodology.
“I dunno. Does that look ‘unusually high’ to you?” Drum asked of the stats Liptak cites. “It looks to me like it’s about the same as Sotomayor, and only a bit higher than Ginsburg, Alito and Roberts.”
Orin Kerr, a law professor and blogger at The Washington Post’s Volokh Conspiracy, dug into the studies Liptak used and came to the same conclusion.
“I don’t see how these studies support the Times’s presentation of Justice Thomas as an outlier,” Kerr wrote. “Even if these small differences are indicators of something, I’m not sure what that thing is.”
At Mediaite, Alex Griswold (a former Daily Caller reporter) leveled a stronger accusation against The Times piece.
“Unfortunately, the Times attack plays into the longstanding and disgusting liberal meme that Justice Thomas is just some ‘puppet’ of the other conservative justices…and conservatives in general,” Griswold wrote.
“It’s hard to ignore the underlying racial double standard; that the only black justice is the one who’s somehow incapable of independent thought, but not his white ideological allies on the Court.”