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The Numbers Racket in Studying the Supreme Court

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Adam Liptak has this article in the NYT.  The first two paragraphs read:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.
From that opening, the headline of the article, and the prominent picture of Justice Thomas, readers would likely get the impression he is very different from any of his colleagues on this measure.  Here are the actual numbers from further down the article:

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.
In other words, Justice Thomas is barely different at all from Justice Sotomayor and not much different from Justice Ginsburg, a result very different from the initial impression formed by the top of the article.  Liptak's characterization of Justice Thomas's rate as "unusually high" is particularly questionable.  On any measure, one of the nine has to be highest, and the fact that Justice Thomas's number happens to be a smidge higher than the next highest does not come close to justifying that characterization.
A bit of background -- In many fields it is highly improper to copy someone else's language without attribution.  In law it happens all the time, and there is nothing wrong with it.  In trial courts, it is common for a judge to rule on a motion orally and then ask the prevailing party to prepare the written order.  That isn't done in appellate courts, but lifting language from a brief is not unusual.

Academically, the studies the article is based on are kind of interesting, but it is strange to see them as the subject of an article in a general newspaper.  There is no news here.  Down near the bottom, we get this:

In an recent email, Professor Mann attributed the shared language to "successful advocacy."

"You could regard it as problematic if you thought that the opinion drafting that tracked the brief so closely was 'lazy,' " he added, "but that seems unlikely to me."
Right.  But that point should have been at the top.  Few readers will get this far.

2 Comments

Courts should quote briefs when they are particularly well-done. Makes for better advocacy.

I have always considered it to be the highest form of flattery when an appellate court has used language from my brief in the opinion.

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