The New York Times had quite the bombshell Friday with a piece alleging that conservative Supreme Court Justice Clarence Thomas has a habit of simply borrowing the language of briefs submitted to the Court, rather than coming up with his own ideas.
Here’s the lede paragraphs to the piece, written by Adam Liptak and entitled “Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own.”
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.
An embarrassing fact, if true. It makes Thomas seem less like a respected and objective purveyor of the law, and more like a mouthpiece parroting whoever he agrees with.
But only a few paragraphs later, Liptak gives a perfectly mundane reason why Thomas uses so much borrowed language: “…he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.”
Liptak waits until all the way until the 15th paragraph to give the actual percentages of how often Thomas borrows language compared to his peers.
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.
So in other words, Thomas uses language from submitted briefs barely more often than his liberal peers, borrowing language from submitted briefs is extremely common, and Thomas has a perfectly reasonable explanation for why he uses borrowed language slightly more often. But instead of a generic take on how often the Supreme Court as an institution relies on briefs, the Times singled out Thomas and falsely said in its lede that he used borrowed language at “unusually high rates.”
I won’t dance around the issue; this was a partisan attack, plain and simple. There was no journalistic reason to single out Thomas, but plenty of ideological reasons to do so. So rather than write a wonky piece with a dispassionate headline, the Times and Liptak went for partisan clickbait, facts be damned.
Unfortunately, the Times attack plays into the longstanding and disgusting liberal meme that Justice Thomas is just some “puppet” of the other conservative justices (usually Antonin Scalia) and conservatives in general. It’s hard to ignore the underlying racial double standard; that the only black justice is the one who’s somehow incapable of independent thought, but not his white ideological allies on the Court.
Law blogger Adam White wrote a good overview last year of the extent to which mainstream publications have no problem regurgitating the odious implication:
The Washington Post’s Mary McGrory asserted in 1992: “Thomas has come on as Scalia’s puppet.” Linda Greenhouse, of the New York Times, was gentler, but no less prejudiced, when she called Scalia Thomas’s “apparent mentor.” Newsweek trafficked in outright conspiracy theory: “Not only is Scalia an aggressive and articulate proselytizer but one of his former law clerks now works for Thomas. The clerk, Newsweek has learned, exerts considerable influence over the rookie justice.” All told, the conventional wisdom was best reflected by an ACLU official, who complained that “Thomas and Scalia are one person with two votes.”
The reality is that virtually all unbiased court watchers recognize that Thomas has some of the most unusual, idiosyncratic, and unique opinions on the Court, and that half the other Justices are more likely to vote on ideological lines. Scalia and Thomas aren’t the justices most likely to vote the same way: that honor goes to liberal justices Sonia Sotomayor and Elena Kagan. No less than the Huffington Post and ThinkProgress noted that the notion that Thomas is a puppet of Scalia is a “myth.”
But still, the notion persists that Thomas is a mute moron in the thrall of conservative justices, his (white) wife, and the Catholic Church. Again, it’s hard to separate these baseless allegations from the racist attacks that Thomas is an Uncle Tom and, to use George Takei‘s turn of phrase, “a clown in blackface.” It’s just sad to see America’s supposed “newspaper of record” participating in such tripe.
[Image via screengrab]
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