In the New York Times, Adam Liptak analyzes a study assessing how similar the Justices’s opinions are to the merits briefs. The overwhelming majority of the article focuses on how Justice Thomas “contain language from briefs submitted to the court at unusually high rates.” Thomas’s name appears twenty times in the article. If you only read the first 15 paragraphs, you would think that Thomas is an outlier on the Court. But then, we get to paragraphs 16 and 17:
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.
Justice Elena Kagan, who has a livelier writing style, had the lowest rate, at 7.1 percent, and Chief Justice Roberts was in the middle, at 9.2 percent.
Thomas is at 11.3. Sotomayor is at 11. And the Notorious RBG is at 10.5. Are these numbers so far apart, that an entire lede is warranted on Thomas’s writing style, when his colleagues have virtually indistinguishable rates? Professor Feldman’s study focuses on Thomas, Ginsburg, and Sotomayor as trio:
Several of the justices including Douglas, Murphy, Whittaker, Minton, and Sotomayor have median values clearly over 10%. Indeed each of the justices in- terquartile ranges exceeds 10% except for Justices Jackson and Kagan. There is a clear decrease in the maximum values of language overlap per justice over time as well potentially indicating that the greater variety of legal research tools at the justices’ disposal and a shrinking docket led to less reliance on the parties’ briefs.
The differences between the justices’ overlap values increase our understanding of the differential utility of briefs. The range in median language overlap value across justices is almost as large as the value for the justice with the smallest overlap value (Justice Kagan has a median overlap value of 6.5% although this is based on only 46 observations or 23 cases). On the other end of the spectrum, Justice Murphy has the largest median overlap value with 12.5%. Since the Burger Court era, the justices with median overlap values of 10% or greater are Justices Thomas, Ginsburg, and Sotomayor.
The only portion of the article that singles out Thomas is that he is more likely to “share” language from a “conservative” brief. But the article explains, this isn’t surprising, as he is the most statistically “conservative” justice on the Court.
Almost all of the justices with a strong propensity to share brief language de- pending on the ideological direction of the brief were on the Court prior to the 1980’s. All of those justices favored language from liberal briefs. Justice Rutledge and Whittaker’s difference between overlap values with liberal and conservative briefs at 7.94% and 6.44% are almost double that of the justice with next highest value – Justice Fortas at 3.61%. The remainder of the justices in Table 2 fit into the 2-3% difference range. Justice Thomas is the only contemporary justice with a difference value of over 2%. Since he is often touted as a staunch conservative justice (Smith 1996), his preference towards conservative briefs may not be surprising. Still, other justices whose votes on the merits are strongly associated with their ideological preferences do not fit this pattern
In any event, kudos to Justice Kagan for being in the same company as the great Justice Jackson. In her interview with Bryan Garner, she explained how she rewrites the first drafts of her law clerks in their entirety.
Kagan asks her clerks to write the first draft of an opinion, which she then uses as a “springboard” for writing her own second draft, which she said is “98 percent mine. The new opinion is mine.”