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.