September 2, 2015

The NYT's embarrassing attack on Clarence Thomas for writing in words that are "not his own."

The Times' Adam Liptak wrote, in paragraph 2, that "opinions contain language from briefs submitted to the court at unusually high rates." And then way down in paragraph 15:
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.
So, obviously, there is absolutely nothing special about Thomas's use of language that's also in the briefs.

And, I would add, the use of the same language isn't even a problem, because briefs and court opinions are always studded with quotes from old cases and the kind of stock word clusters that make up legal doctrine and shouldn't be paraphrased. I'm surprised the shared language is as low as 11%. I'd guess that any judge that does us readers the service of keeping it concise would have a higher percentage, because there'd be less filler and verbosity to dilute the necessary language.

My link goes to the blog post at Reason.com, which cites Orin Kerr's trenchant criticism....
The implication is that Justice Thomas is not doing his job. Not only does he not ask questions, he doesn’t even think for himself. For the New York Times audience, it's the kind of ideological catnip that is likely to make a lasting impression...
... and the wan response to Kerr from the New York Times Public Editor Margaret Sullivan:
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.
And I think those 2 sentences are careful — careful not to hurt Adam Liptak's reputation and careful not to get in the way of the game of inspiring contempt for Clarence Thomas.

Sullivan's short piece  is mostly — talk about using words not your own! — a reprinting of email  from Adam Liptak. I'll put these 4 paragraphs after the jump because they're too long and windy (like a not-concise judicial opinion). I read them with growing outrage at the Sullivan's weak acceptance with mild distancing. She couldn't even say that Liptak overstated Thomas's distinctiveness. It had to be "may well have overstated." Embarrassing!

Liptak's email to Sullivan:
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.
IN THE COMMENTS: John Althouse Cohen said:
My reaction: If the one with the highest amount of overlap with the briefs or lower-court opinions were Ginsburg or Sotomayor, the New York Times would tell us it's a sign of her great humility in drawing on the wisdom of others instead of arrogantly trying to remake the law.

58 comments:

tim in vermont said...

I wonder if he owns a "luxury speedboat" similar to those commonly seen in the driveways of double wides around here?

Gahrie said...

The answer to your question, then, is that the article focused on Justice Thomas because he is a Black, Conservative Justice.

FIFY

rhhardin said...

They should have added that Thomas is stupid because US blacks have an average IQ of 86.

tim in vermont said...

I got a real kick out of Hillary supporting an effort to impeach Thomas for alleged "crimes" that were so much less than those credibly alleged against her own husband which she attributed to a "vast right-wing conspiracy."

Obviously, since she seems to dabble in conspiracies of this nature, it would naturally be her first thought that she was the target of one.

David said...

I read the article and was disgusted by it. If it were not the New York Times, which can't possibly be racist, I would say that it was a racist article. It certainly was hateful.

Brando said...

If a conservative publication wrote a lame critique of Thurgood Marshall--implying that he's not really doing his job because his copy rate is 0.3% higher than the next highest Justice--it would rightly be condemned as a hack job with possibly racist overtones.

Anyone with a working brain can see that legal opinions often (as Althouse points out) have to copy blocks of text from briefs or cites from earlier opinions--this isn't laziness, rather it's aiming for legal consistency. It's why the other Justices have "copy rates" so close to Thomas's that the difference is statistically insignificant.

Another embarrassingly weak shot from the Paper of Record, aimed for a low information public.

Brando said...

"I got a real kick out of Hillary supporting an effort to impeach Thomas for alleged "crimes" that were so much less than those credibly alleged against her own husband which she attributed to a "vast right-wing conspiracy.""

What on earth was the basis for this impeachment??? Thomas is guilty of nothing more than writing opinions his critics don't agree with. I haven't even seen any accusations that he engaged in any judicial misconduct.

It'll be a glorious day when and if Hillary is denied the presidency she believes she deserves. She is a truly slovenly creature.

Tank said...

Remember the degree of accuracy, honesty and fairness in this article when reading every other article in the Times.

Thorley Winston said...

So what's the overlap between NYT editorials and press releases from the DNC and "progressive" activist groups? Probably higher than a justice's opinion and a brief of any of the parties to the case before them.

MadisonMan said...

How odd that comments are disabled on the Liptak article in the Times.

phantommut said...

Of course, this is air cover for Hillary and Sid's little shared fantasy of impeaching Thomas. That was a mild "mean girls get the notes passed during class intercepted, read aloud by Mrs. Wormwood" little incident, but it's just been made much more humiliating (and publicized) by Nerd Girl trying to suck up to Princess Hillary.

If you just think of politics in terms of poorly behaved high school brats it (a) makes much more sense and (b) starts being funny.

Scott said...

The New York Times is like a vast picnic in Central Park, resplendent with food of every kind -- and dotted with pigeon droppings of extreme bias.

That's why I like the Washington Post better. The spread isn't so sumptuous, and the menu is a bit tendentious, but the quality of what they serve is consistently better.

Matthew Sablan said...

I wonder if this was done in concert with the emails to Clinton about trying to impeach Thomas.

Rusty said...

Justice Thomas refuses to get back to that plantation.

Uppity negro.

Scott said...

(and eye kant rite today, apparently)

Bay Area Guy said...

Both the NYT and the DNC are organs of the Left, and have a strong will to power.

Justice Thomas presents an obstacle in their path towards power. So, they don't like him very much. Hence, snarky headlines and crude discussions of impeachment. It isn't that complicated, is it?

I think Justice Thomas is a great man, a great historical figure.

kcom said...
This comment has been removed by the author.
kcom said...

"So what's the overlap between NYT editorials and press releases from the DNC and "progressive" activist groups?"

Great question, Thorley.

"The answer to your question, then, is that the article focused on Justice Thomas because he was the consistent outlier."

Yeah, he might be a very minor outlier but you're just a liar.

Michael K said...

This is just one more skirmish in the Left's war on Clarence Thomas. They were successful in keeping Janice Rogers Brpwn and Miguel Estrada off the court by filibustering appeals court appointments when Republican presidents attempted to appoint them to positions where they were possible USSC nominees.

Leaked internal memos to Democratic Senate Minority Whip Dick Durbin mention liberal interest groups' desire to keep Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee. A spokesman for Durbin said that "no one intended racist remarks against Estrada" and that the memo only meant to highlight that Estrada was "politically dangerous"

President George W. Bush nominated her to her current position in 2003. However, her nomination was stalled in the U.S. Senate for almost two years because of Democratic opposition. She began serving as a Federal Appellate Court Judge on June 8, 2005.

Instead, we got two ciphers from Obama.

Michael McClain said...

Obvious racism toward the black Supreme Court Justice.

John Althouse Cohen said...

My reaction: If the one with the highest amount of overlap with the briefs or lower-court opinions were Ginsburg or Sotomayor, the New York Times would tell us it's a sign of her great humility in drawing on the wisdom of others instead of arrogantly trying to remake the law.

Tank said...

I'd like to see Thomas' picture on the $20.00 bill.

I hear that space is available.

Matthew Sablan said...

"Estrada off the court partially because "he is Latino," and because of his potential to be a future Supreme Court nominee. A spokesman for Durbin said that "no one intended racist remarks against Estrada" and that the memo only meant to highlight that Estrada was "politically dangerous""

-- I have no doubt it was meant to be racist. "The only kind of Latino that we want is OUR kind of Latino," was the thinking. That's racist.

tim in vermont said...

The only grounds for impeachment of Thomas that I could imagine, other than the raw political grounds, would be for lying during the confirmation hearings. That seems like pretty uncomfortable ground for the slut shamer in chief, Hillary.

Garage is pretty up to date on all of the slanders, err, I mean arguments she used against her husband's accusers.

Hagar said...

For an article like this to make any sense to start with, there would also have to be a category of how many of the words not quoted were just verbose filler twaddle.

Douglas said...

Liptak is an idiot. Either that, or a commie drone. Your choice.

orthodoc said...

In other words, he's lazy and stupid. He doesn't understand what's going on, which is why he doesn't ask questions. Got it.

damikesc said...

At this point, I want a vengeful Republican to win the WH and release EVERYTHING Obama has done to the public (except some international deals with actual allies). Let the country see what his administration has done. Make it public and constantly blast him for it.

Chris N said...

This is why there are journalism schools, 'media labs,' and even a newseum, am I right?

Large institutions serving the public good while digging around for truth in the halls of power.

'Is Clarence Thomas still around. Hello? Progress, anyone?

Liptak: 'I'm on it, boss, the guy's a stooge'

Anonymous: 'Excuse me, miss, there's a pube in my Coke'

'Ewwwww'

*Laughter...a few groans*

tim maguire said...

It seems to me there's a whole level of "doh!" here that's not being properly mined--the people filing those briefs wanted their language used. If something I submitted to the court wound up in the decision, that was a high-five, I did my job moment.

The New York Times truly is pablum for pukes. Keeping the stupid stupid so they can remain blissful in their feigned sophistication.

bbkingfish said...

Busting this guy for plagiarism would be like busting Al Capone for parking next to a fire hydrant.

The bastard may have done it. But, in the context of the more general threat he poses to society, it really is a non-issue.

Michael K said...

Isn't Liptak the NY Times guy that Bush called "an asshole?"

I seem to remember that.

"Big Time," said Cheney. Both right on the mark.

CJinPA said...

According to the Times the difference between Thomas and the self-described Wise Latina in intellectual laziness is 0.3 percent? A shift of .3 percent, and this article - and its whole premise - never sees the light of day.

CJinPA said...

Isn't Liptak the NY Times guy that Bush called "an asshole?"

Close, but it was Adam Clymer. A bitter old lefty who no long toils at the Times.

I'll never forget the suddenly sensitive Dan Rather reporting that "Gov. George Bush refuses to apologize for his obscene gutter talk yesterday..."

Actually used "obscene" and "gutter talk."

Brando said...

"Isn't Liptak the NY Times guy that Bush called "an asshole?""

I think that was Adam Clymer. Different "asshole".

Henry said...

From Liptak: [Justice Thomas’s] majority opinions tend to be brisk, efficient and dutiful... [His] seven majority opinions in the last term were on average just 12 pages long...

If Thomas tends to write efficiently and if court decisions by necessity include " quotes from old cases and the kind of stock word clusters that make up legal doctrine" (in Althouse's phrasing) then simply by the math he will have a higher percentage of borrowed language.

Math.

EDH said...

To witness persistent acts of racially-motivated harassment of an individual continuing unabated over years with no public acknowledgement, accountability or correction, you really have to look to the left.

Steve said...

As a conservative and a Justice that is well known for writing the shortest opinions in recent memory, it is surprising that Justice Thomas is that close. Every S. Ct. opinion includes a summary of the facts and relevant law that is by and large taken from the briefs. Justice Thomas then succinctly decides the case based on the law. It takes substantially more verbiage to break new ground and convince the populace that a new right has been discovered.

rhhardin said...

Dog discovered in constitution. penumbra.

William said...

Very few public figures could survive the kind of relentless scrutiny that Judge Thomas has been subjected to over the decades. What this scrutiny highlights, however, is not the flaws of Judge Thomas but the bias of the media. Before Kwame Kilpatrick and Ray Nagin got sent to jail, most of what you read about them was positive.

Michael K said...

"I think that was Adam Clymer. Different "asshole".

Yup. Thanks for the info. Both still assholes, though.

Greg said...

It would be nice to see someone at Nate Silvers site do a statistical analysis to determine how significant the differences are. Article title 'How racist is the NYT'

Drew Cloutier said...

As an attorney who has to apply Supreme Court opinions it is helpful for the court to trace the lower court language where it is in agreement. One does not have to parse minor differences in language looking for an unintended distinction.

Brando said...

"Very few public figures could survive the kind of relentless scrutiny that Judge Thomas has been subjected to over the decades. What this scrutiny highlights, however, is not the flaws of Judge Thomas but the bias of the media."

The racialist Left is half confused and half frightened by cases like Clarence Thomas (or Ben Carson). Their race and backgrounds should lead them to embracing the leftist narratives, so when they don't, the leftists don't know what to make of it. Rather than consider that, much like whites and wealthy people, blacks who came from poverty could have vastly different politics, they have to assume something else explains it--e.g., they're sellouts, they're tokens happy to be embraced by the Right, or they are willfully blind.

One Clarence Thomas is far more dangerous to them than a thousand Scalias.

Anonymous said...

Battle Space prep for when Hillary gets the Presidency. Then they can impeach him.

Peter Bella said...

Once again, the New York Times embarrasses itself.

HoodlumDoodlum said...

Liptak apparently doesn't know what "outlier" means and bbkingfish apparently doesn't know what "plagiarism" means.

Hey, is the article ugly, though, Prof? Sure seems ugly to me...

Crazy Jane said...

Most journalists are not good at math. (Once, years ago, a fellow reporter asked me to calculate a percentage because I had studied calculus and thus would know how to do it. True story.) This doesn't excuse Liptak, whose piece was unconvincing, labored hackery. Worse, it appears the Times doesn't have editors who are smart enough or neutral enough to protect reporters from embarrassing themselves and the larger enterprise.

BudBrown said...

So I wonder how many quoteless words Thomas would have to write in his next opinion
to drop below 10%. Then Sotomayor will be the outlier and will have to respond.
This could set off a war of quoteless opinions.

Fred Drinkwater said...

Liptak thinks he's a writer, therefore tries to think like one.
Many many moons ago, I programmed OS internals (low-level device drivers, schedulers, memory managers, etc.). I worked with technical writers to edit the documentation. Common problems in their writing appeared from their efforts to be "creative" or "interesting" - they balked at using the EXACT SAME wording to describe the features of two things which were EXACTLY THE SAME. (E.g. the common features of two functions to allocate memory, differing only in the unit of allocation.) In such documents it was essential to use the same wording, where appropriate, to avoid confusion and ambiguity. Accuracy, precision, and clarity ruled the roost.
The better tech writers figured this out; the persistently creative types got sent to write for Sales and Marketing.
The analogy with legal writing is left as an exercise for the reader.

damikesc said...

One Clarence Thomas is far more dangerous to them than a thousand Scalias

Hell, remember what they did to Estrada? And how when NAILED for what they did to Estrada, they had the media turn the story around to how Republicans were evil for reading their stuff on a server accessible to anybody on Capitol Hill at the time.

HoodlumDoodlum said...

damikesc said...Hell, remember what they did to Estrada?

Remember how the Republicans made the Democrats pay for filibustering judges and using the nuclear option by...oh, wait. Nice work, Stupid Party.

"But, but, but, most filibusters ever, party of no, voters'll hate us!" Idiots.

PB said...

The NY Times is good for wrapping fish.

Brando said...

"Remember how the Republicans made the Democrats pay for filibustering judges and using the nuclear option by...oh, wait. Nice work, Stupid Party."

That was ridiculous. First, if someone wants to fillibuster, make them fillibuster--talk all night and day, and get the item in the news. Let the Dems try and explain why it is so important to take down Estrada, and the GOP could take their case to the public as to why the Dems are holding up a qualified nominee for no reason.

Second, if that doesn't work--end the fillibuster. Harry Reid showed us he could do it and no one would make a peep--in fact, your own partisans will always say "they're thwarting the will of the majority" and "they're using terrorist tactics to prevent Congress from doing it's job".

Sometimes it's as though the GOP is arriving at this gang fight with boxing gloves while the Dems show up with knives and clubs.

eddie willers said...

From my new favorite comedy:

"You just brought piss to a shit fight"

mikee said...

An outlier has a meaning, generally that a data point is 3 or more standard deviations from the mean of a normal distribution.

Data provided does not allow assessment of the use of the word outlier by readers, other than as a statistical-sounding word meaning "different."

The Times failed to respond with any facts to a complaint that a story lacked necessary facts.

Zach said...

First off, when you look at the actual graphs, they do not support a conclusion that one Justice quotes more or less than any other. They have similar levels of quotation, with distributions that overlap strongly.

The absolute magnitude of the differences is something like one or two words per hundred, which is
a) trivial, and
b) easily explained by differing quotation styles.

When I write a paper, I am careful to put in one equation which shows the actual expectation value I am calculating. Other people sometimes assume you know what they're calculating, which can be very irritating when you're trying to track down a discrepancy. So if you added everything up, I would have one or two extra lines of boilerplate in a ten page paper. Does that make me a better writer, or a worse one? Or is it just a matter of personal preference, with no meaning either way?

Todd said...



Zach said...
First off, when you look at the actual graphs, they do not support a conclusion that one Justice quotes more or less than any other. They have similar levels of quotation, with distributions that overlap strongly.

The absolute magnitude of the differences is something like one or two words per hundred, which is
a) trivial, and
b) easily explained by differing quotation styles.

When I write a paper, I am careful to put in one equation which shows the actual expectation value I am calculating. Other people sometimes assume you know what they're calculating, which can be very irritating when you're trying to track down a discrepancy. So if you added everything up, I would have one or two extra lines of boilerplate in a ten page paper. Does that make me a better writer, or a worse one? Or is it just a matter of personal preference, with no meaning either way?
9/4/15, 1:11 AM


When it comes to Clarence Thomas, any deviation from the "norm" is cause for concern. In fact it goes beyond that and I am sure that if there are any metrics by which Thomas exactly matched the court norm, we would be treated to an "insightful" dissertation as to how Thomas does not distinguish himself but simply holds to the pack. For the left, he is "damned if he does and damned if he does not".