Last week I blogged about Adam Liptak’s article about Justices who crib language from briefs. I noted that though the entire piece seemed to focus on Justice Thomas, we didn’t find out till paragraph 15 that Justices Ginsburg and Sotomayor have virtually indistinguishable measures. Orin Kerr made a similar observation.
The Times Public Editor weighs in. First, here is an explanatory email from Liptak.
By five different measures, Justice Thomas wrote majority opinions that shared language with source materials more than his colleagues did. This was true of parties’ briefs, friend-of-the-court briefs and lower-court decisions, according to three studies and related data that considered two separate time periods. That seemed unusual and worth exploring, and it opened a window onto the phenomenon of shared language in judicial decisions.
The explanation for Justice Thomas’s consistently high rates of overlapping language, offered at the beginning of the article, was benign: When he is writing for the court, he concentrates on minor, technical cases in which shared wording is particularly common. His many dissenting and concurring opinions, the article added, were another matter, often making expansive and original contributions to constitutional law.
It is true, as the article noted, that Justice Thomas’s rates of shared language were by some measures only modestly higher than those of some other justices. But they were consistently so. Other measures showed that Justice Thomas in the last decade signed a disproportionate share of individual majority opinions with particularly high levels of overlapping language.
The answer to your question, then, is that the article focused on Justice Thomas because he was the consistent outlier.
The Editor offers a brief reply:
I thought the article’s language was quite careful, and, from what I can tell, accurate. But the overall impression it left may well have overstated the case. Part of that was conveyed by the headline, “Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own,” which, while also accurate, seemed to suggest something close to plagiarism.
The headline and graphic of Thomas–which Liptak (most likely) did not choose–no doubt accentuated the focus on CT. I think the piece could have been improved significantly had there been more than one brief, passing references to other Justices who have similar rates–even if it is in only one study. Reading till paragraph 16 felt like a bait and switch–mention it earlier, and I don’t think I would have minded nearly as much.