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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.”

It shows.

Bryan Garner, in his latest interview with Justice Kagan, extracted a fascinating gem.

Garner also noted that unlike some justices, Kagan uses contractions like “don’t” in her opinions. Kagan said she only does so in dissents, because those represent a more individual opinion than the judgment of the entire majority. “Some of my colleagues don’t like it,” she said. “At least one justice has given me a little grief” for using contractions.

I love how she used a contraction, “don’t,” to say her colleagues dislike contractions.

We often discuss the difficulties of writing a majority opinion from a substantive perspective–trying to keep everyone on board. But there’s also the technical aspect. Judges may grumble at prose as well. This is a delicate issue. From my time clerking, one of the big battles was the Oxford comma. A certain judge who shall go unnamed refused to use the Oxford comma, no matter how often he was asked to do so. After a while, the other judges on the court stopped making the suggestion to add the Oxford comma. Perhaps Kagan’s colleagues are more persistent about contractions.  I’m going to take a wild guess that it was her hunting buddy Nino. Recall that Garner and Scalia’s book almost fell apart over the contraction:

The work was sometimes rough going—“Reading Law” alone took two hundred and sixteen drafts. “Justice Scalia is an intellectual pugilist, throwing some very hard punches,” Garner explained. “But he wanted to see what I had coming back. He’ll work out positions by taking a strong stance and seeing what you have.” . . . In one of their darker moments, the book was almost cancelled—over a dispute about grammatical contractions, like “don’t” and “can’t,” that they had to leave unresolved. (Garner deems them acceptable in legal writing; Scalia, the only child of a professor of Romance languages, finds them “intellectually abominable, but commercially reasonable.”) “And yet,” Garner said, “Justice Scalia and I have not yet found a case that we would decide differently. We begin and end with the words of the text.”

Elsewhere, Scalia told Nina Totenberg that “using contractions comes off as an attempt to be ‘buddy-buddy’ with the judge.”

A quick search of the Supreme Court database on WestLaw reveals only a handful of don’ts (plural of don’t?) in recent years, excluding where the Court was quoting something else. Roberts and Kagan are the worst offenders. Here is a sampling:

• According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Horne v. Dep’t of Agric., 135 S. Ct. 2419, 2430 (2015) (Roberts, C.J.).
• To my knowledge, no court has *1092 ever read any such provision to exclude things that don’t record or preserve data; rather, all courts have adhered to the statutory language’s ordinary (i.e., expansive) meaning. Yates v. United States, 135 S. Ct. 1074, 1091-92, 191 L. Ed. 2d 64 (2015) (Kagan, J., dissenting).
• Biological Father and the Solicitor General argue that a tribe or state agency could provide the requisite remedial services under § 1912(d). Brief for Respondent Birth Father 43; Brief for United States as Amicus Curiae 22. But what if they don’t? And if they don’t, would the adoptive parents have to undertake the task? Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2564, 186 L. Ed. 2d 729 (U.S.S.C. 2013) (Alito, J.).
• First, a patent is either valid or invalid. The parties of course don’t know the answer with certainty at the outset of litigation; hence the litigation. But the same is true of any hard legal question that is yet to be adjudicated. Just because people don’t know the answer doesn’t mean there is no answer until a court declares one. F.T.C. v. Actavis, Inc., 133 S. Ct. 2223, 2244, 186 L. Ed. 2d 343 (2013) (Roberts, J., dissenting).
• So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory. And a note to all other courts of appeals: Don’t try this at home. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1534, 185 L. Ed. 2d 636 (2013) (Kagan, J., dissenting).
• If States decide to enroll and comply with those requirements, they get federal money. If they don’t, they don’t. Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391, 1404, 185 L. Ed. 2d 471 (2013) (Roberts, J., dissenting).

Jay Sterling Silver (St. Thomas) has a disquieting Op-Ed in the National Law Journal, titled “Law Schools’ Shell Game of Minority Enrollment.” (Via TaxProf). Silver writes that law schools are taking example of a reporting “loophole” to increase diversity numbers without hurting their LSAT numbers and rankings. What’s the loophole? First, schools report the median LSAT of the incoming 1L class, not 2L transfers. Schools have every incentive to get this number as high as possible, in order to improve the all-important U.S. News & World Rankings. As a result, fewer minority applicants are admitted as 1Ls. Second, schools report the diversity numbers for the entire student body, not just the incoming 1Ls. As a result, schools then admit minority students as 2L transfers. Silver writes:

As one law school administrator explains: It is not a terribly well-kept secret that many upper-tier schools or aspiring upper-tier schools will take no chances at all on their entering classes and then will raid places like here for students of color who have done well and give them lots of money and take them in. Then they can report that their overall student population has diversity even though their first-year class looks very white.

But why? It’s simple. As a group, the LSAT scores of minority students are lower than nonminority students. In a gaping and opportunistic loophole, the ABA requires law schools to report the racial makeup of the student body as a whole, but only the LSAT scores of first-year students. Neither the race nor the LSATs of transfer students must be disclosed. Admitting more minority students after the first year thus kills two birds with one stone: It inflates the number of minorities enrolled at the school while, at the same time, preserving the school’s all-important, LSAT-related ranking in U.S. News.

This “shell game,” Silver writes, creates the “illusion of minority access.”

The cost of the practice, of course, is that these schools have produced nothing more than the illusion of expanded minority access to the profession, often provide these students with smaller scholarships, and, in the process, have successfully gamed the rankings by averting the inclusion of lower LSAT scores into the LSAT profile they must disclose.

Silver offers this anecdote, though he doesn’t name names:

Elite schools — two of which ushered in transfers last year roughly equal in number to one-fifth of their first-year class — are hardly exempt from the temptation.

Many schools, not content to wait for transfer applications to show up in the mail, aggressively recruit transfers. And often it’s not pretty. At some schools, administrators write and phone students on the dean’s list at neighboring law schools, sometimes disparaging the students’ current school. But perhaps the seamiest ploy of all was a recent dinner party thrown by a law dean who implored his guests, almost all of whom were minority students who’d done well at another school, to transfer and to convince their classmates to do so as well.

This behavior is shameful, not just from a policy perspective, but from a constitutional perspective. In his dissent in Grutter v. Bollinger, Justice Thomas contends that if schools really want to increase diversity–and this is indeed a “compelling” interest that satisfies strict scrutiny under the Equal Protection Clause–then there is a much easier way of accomplishing this goal. Instead of using using race-based preferences, schools should drop the discriminatory admission criteria (LSAT). Thomas cites the success of historical black colleges that do no have stringent admission criteria. But of course, Thomas writes, “elite” schools will not do this as it will impact their academic selectivity.” Priorities: academic standing comes before diversity. Instead, schools turn to affirmative action as a way to keep their elite rankings, and admit more minority students, without harming their overall academic standing.

Read Justice Thomas’s analysis.

One must also consider the Law School’s refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce “academic selectivity,” which would in turn “require the Law School to become a very different institution, and to sacrifice a core part of its educational mission.” Brief for Respondents Bollinger et al. 33—36. In other words, the Law School seeks to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status.4

4.  The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of “diversity” are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School’s reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all.

Apparently, even with affirmative action policies in place, schools refuse to admit the minority candidates as 1Ls, and let them in as 2Ls, to keep their rankings high. The critical benefits from diversity, it seems, are only needed for the 2nd and 3rd years of law school.

If diversity were such a compelling interest, that it can overcome equal protection strict scrutiny–a distinction only achieved previously in Korematsu–it would be unthinkable for law school deans to sacrifice minority admission in the 1L class, and amplify them for the 2L class, so rankings would not take a hit. If diversity is important for a 2L class, why should it be any less important for the 1L class. If anything, new wide-eyed law students would stand to benefit most from a broad-range of perspectives, far more than the jaded 2Ls, no? This does not suggest that the commitment to diversity is consistent, let alone compelling. Justice Thomas, at least in this part of his Grutter dissent, is exactly right. Indeed, the decision of George Washington University to drop the SAT requirement, in the hopes of attracting more minority students, is an example of putting their money where their mouth is. (Although, it may be the case that eliminating the SAT requirement means there are fewer bad scores to report, and thus rankings are higher).

Former FEMA Director Michael Brown (of “Brownie” fame) writes in Politico that he isn’t to blame for many of the failures in New Orleans after Hurricane Katrina. His explanation why he didn’t force the city to evacuate–involving federalism and the posse comitatus act–is fascinating.

I’m often asked, as the person who was running FEMA when Hurricane Katrina hit, why I didn’t evacuate New Orleans. My response is simple—FEMA had no authority to do that under the Constitution, which clearly establishes a system of federalism in which state and local governments are autonomous governmental entities. We call first responders “first” for a reason. When you dial 9-1-1 your call isn’t answered by an operator at 500 C Street SW, Washington, D.C., 20472. Your call is answered by a local government entity that has first and primary responsibility for a disaster.

Could FEMA have ordered the evacuation of New Orleans? Yes, had it waived posse comitatus and invoked the Insurrection Act, which Congress ultimately amended in 2006 to permit deployment of troops in response to natural disasters. That unprecedented action was actually contemplated days after landfall aboard Air Force One—and I advocated for it. After I advised the president to federalize the response, he sat with Louisiana Governor Kathleen Blanco and New Orleans Mayor Ray Nagin on Air Force One and outlined his plan. We immediately started drafting the federalization documents for the president’s signature, but Governor Blanco requested time to think it over and the president acquiesced. While the governor considered her options, the city became more and more dysfunctional. Blanco ultimately rejected the president’s plan, and political considerations eventually pushed the idea aside.

Go figure. The Bush Administration considered invoking the Insurrection Act to evacuate New Orleans after Katrina.

Air travel has been revolutionized over the last two years–for me at least. First, the FAA eliminated the idiotic rule that prevented me from using my phone during takeoff and landing. That would eliminate roughly 30 minutes of productivity from every flight. Second, United (my airline of choice in the hub of Houston) has expanded Wi-Fi coverage to almost its entire fleet. This has increased my productivity in ways I can’t even describe, especially on flights during the day that are more than 2 hours long. On flights where the middle seat has been empty, I’ve even been able to set up my second monitor. With Wi-Fi, I can do everything I could do on the ground, in the air. I’ve even purchased the WiFi over my phone, and tethered over bluetooth to my laptop, so I can stay online without paying again when the laptop ban goes into effect during takeoff and landing. It has been a game-changer.

United, unlike American and Delta, does not rely on Gogo. Rather, it uses its own proprietary service, United WiFi. Unfortunately, United does not allow for a monthly subscription, but the FAQ says “we may offer these options in the future.” As a result, I pay the full price every time I fly. I’ve noticed that the rate bounces around, almost randomly. Here is a sampling:

• IAH – EWR, 3 hours cost $11.97 (Friday)
• IAH – MIA, 2 hours cost $7.98 (this was a mistake, as there was no coverage over the Gulf of Mexico)
• IAH – DCA,  unlimited for $6.99 (Sunday)
• IAH – DCA, unlimited for $4.99 (Friday)
• IAH – EWR, unlimited for $3.99 (Thursday)
• IAH – EWR, unlimited for $8.99 (Wednesday)

In other words, the prices for the same destinations are all over the place, even on the same trip. I suspected some sort of surge pricing was in effect. The New York Times confirms this may be the case, at least with respect to GoGo.

Consider the following increases: Wi-Fi service on transcontinental flights — such as from San Francisco to New York, from Boston to Seattle or from Los Angeles to New York — now cost $28 to $40, up from roughly $18 in 2012, according to Gogo.

Yet those numbers rarely show up in the average price quote for an in-flight Gogo Wi-Fi session, which now amounts to about $12, up just slightly from $10 in 2012. That’s partly because on flights where fewer people are likely to use Wi-Fi, pricing has remained unchanged, which brings down the average cost per session. For example, Gogo’s Wi-Fi service on flights between New York and Fort Lauderdale, Fla., has cost $10 since 2012. In addition, passengers can choose to pay smaller amounts to use Wi-Fi for a portion of a flight instead of the entire trip.

Gogo’s prices are not just higher now; they are also more unpredictable. The company uses a method called dynamic pricing, in which it tries to forecast the demand for Wi-Fi on each flight and scale pricing accordingly. So the prices for the full durations of transcontinental flights also change each day: Gogo charges the most, $40, on Mondays and Thursdays; Tuesdays, Wednesdays, Fridays and Sundays cost $34; and Saturdays are the cheapest, at $28.

At first travelers may balk at the high prices, but there is a good reason for it–congestion and limited capacity. Wi-Fi in the air is a classic example of scarce resources.

Michael Small, the chief executive of Gogo, said in an interview that the company had raised prices because demand for Internet service in the sky had exceeded capacity.

“We’re starting to have millions of users, so it’s getting more and more congested, and we have raised prices, which you typically do when you have more demand than you have supply,” he said. “There’s nothing to apologize for. We have trouble finding a business in America that does anything differently.”

Part of the reason Gogo’s costs can be so high is that the prevailing technology it uses has hit some limits. Its in-flight Wi-Fi works like the cellular network that provides service for cellphones, in which antennas are used to transmit signals to and from towers on the ground. Adding capacity is difficult because there is a limited amount of radio spectrum available for the towers.

To improve the situation, Gogo uses satellite technology for over-water flights, and the company is upgrading to a faster satellite technology called2Ku. The new satellite technology, which received regulatory approval on Monday and will be widely released next year, should add capacity and eventually let the company lower prices, Mr. Small said.

“When we start rolling out the satellite technology and bring out more capacity, we’ll be back in the business of trying to bring on new customers and grow the business and introduce exciting new price plans,” Mr. Small said.

Consider Southwest, which does not have variable pricing.

Southwest has about 550 aircraft equipped with Global Eagle Entertainment’s Wi-Fi services, said Kevin Kleist, Southwest’s manager of Wi-Fi and in-flight entertainment. He said the company had experimented with different prices before concluding that $8 was the sweet spot.

“You don’t want to overprice and not get enough customers. And you don’t want to underprice it and get too many and too much congestion,” Mr. Kleist said.

With respect to Southwest, I recently took a flight and paid $8 for Wi-Fi. I noticed that many people on the sold-out flight were signed onto their phones. It was so slow, it became unusable.  It was a waste of money. The Wi-Fi on United is really fast. I can even search WestLaw and other cumbersome databases with ease. On Southwest, the same search was so slow it became a waste of time to even try.

I wish United offered an unlimited monthly package, which GoGO does. I would buy it in a heartbeat. Or at a minimum, give customers with status, or who are in Business Class a steep discount.