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”?

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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