Bench Memos

Law & the Courts

Schlock Social Science vs. Justice Thomas

The New York Times’ formidable Supreme Court reporter Adam Liptak seems to have an appetite for schlock social science.

In an article last Thursday, Liptak reported that “linguistic software” had supposedly discovered that majority opinions written by Justice Thomas “contain language from briefs submitted to the court at unusually high rates.” (Emphasis added.) As Orin Kerr and Charlie Cooke (among others) have pointed out, Liptak is very unfair to Thomas, as the diligent reader will learn in the 15th paragraph of the article that Thomas’s rate (11.3%) of supposedly “borrowed language” in the lead study Liptak relies on is nearly identical to Justice Sotomayor’s (11%) and Justice Ginsburg’s (10.5%). But that somehow doesn’t stop Liptak from casting aspersions on Thomas.

What’s even more remarkable is that the study, by Ph.D. candidate Adam Feldman, can’t remotely support the use that Liptak tries to make of it. Feldman uses the case of Lawson v. FMR LLC—a 2014 opinion written by Justice Ginsburg—to illustrate his methodology. Feldman quotes three longish sentences from the parties’ briefs that appear verbatim in Ginsburg’s opinion. (See study, pp. 16-17.) But the first sentence is Ginsburg’s express quotation from (with citation to) the petitioners’ brief, in support of Ginsburg’s statement of what the petitioners allege; the second sentence is Ginsburg’s quotation from a Senate report (which petitioners’ brief also evidently quoted); and the third sentence is Ginsburg’s quotation of the statutory provision at issue. What possible reason is there to think that such passages support Liptak’s charge of “apparent cribbing”?

Most Popular

White House

For Democrats, the Party’s Over

If the Democrats are really tempted by impeachment, bring it on. Since the day after the 2016 election they have been threatening this, placing their chips on the Russian-collusion fantasy and then on the phantasmagoric charade of obstruction of justice. The attorney general accurately gave the ingredients of the ... Read More
Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More

The Deepfake of Nancy Pelosi

You’ve almost made it to a three-day weekend! Making the click-through worthwhile: A quick note about how National Review needs your help, concerns about “deepfakes” of Nancy Pelosi, one of the most cringe-inducing radio interviews of all time, some news about where to find me and the book in the near ... Read More