Monday, August 31, 2015
Adam Liptak’s article in the New York Times last Thursday (August 27), Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own, has been making the rounds on legal blogs, social media, and email exchanges.
In the article, Liptak notes that not only is Justice Thomas the least likely Supreme Court Justice to ask questions during oral argument, but that he is also the most likely to author opinions that “contain language from briefs submitted to the court.” Although the article noted that Justice Thomas’s reliance on the words of others in this manner did not suggest any wrongdoing, it did repeatedly indicate that Justice Thomas’s opinions contained the “highest rates of overlaps with language in parties’ briefs,” and referred to the “high rates of seemingly borrowed language in his opinions.”
Last Friday (August 28), Orin Kerr at Volokh Conspiracy posted A misleading story about Justice Thomas, in which Kerr opined that Liptak’s article created an inaccurate impression of the actual data in the studies that precipitated the article. As Kerr noted, although the data did indicate that Justice Thomas’s majority opinions contained language from merits briefs at a rate of 11.29%, Justice Sotomayor’s majority opinions contained such language at a rate of 11.04%, Justice Ginsburg’s majority opinions at a rate of 10.55%, and even Justice Kagan’s majority opinions (at the bottom end of the spectrum) at a rate of 7.13%. As Kerr points out, that means that the spectrum on the Court is really a rate of 7 to 11 words out of 100 being taken from majority briefs, and the difference between Justice Thomas’s opinions and Justice Sotomayor’s is really less than 3 words out of every 1,000. Kerr suggests that although the data may support the notion that Justice Thomas’s opinions contain more language from briefs and lower court opinions than the other Justices, the differences are not sufficient to label Justice Thomas as an outlier in this regard.
From an appellate advocacy standpoint, I think the underlying notion of appellate courts (at any level) taking language from the briefs and including it in the opinion is an interesting one. I teach my students that they should strive to craft briefs and arguments to the court in a way that the court could take the language and adopt it as the court’s decision. Courts are busy, have large caseloads and many issues competing for the attention and focus of the judge, and are always under some timing crunch to get decisions out to the litigants. If, as an advocate, you focus crafting your arguments in a way that you are helping to provide the court with a way to explain a favorable decision and analyze the legal issues that is so well done that the court could simply take your presentation and adopt large portions of it wholesale, then you are doing your job. You are helping the court, advocating in an effective way for your client, and developing a reputation for presenting work product that the court will look forward to seeing in future cases.
Liptak recognized as much in his article, when he quoted an email from Professor Ronald Mann, a law professor at Columbia, who specifically attributed the use of common language from briefs to successful advocacy.
That’s not to say that the court will, or even should, just resort to cutting and pasting arguments and analysis presented in briefs, without the court’s personal revisions, as a matter of habit. But if you consider the quality of advocates that typically appear before the United States Supreme Court, the number of nuances and revisions that the arguments being presented have undertaken from the beginning of a trial to briefing before the Court, and the highly technical nature of some of the cases presented, that one Justice averages an additional 2.5 words out of every 1,000 in a majority opinion being common with the briefs or lower court opinion does not seem like something that merits going viral.
Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, (March 20, 2015), http://ssrn.com/abstract=2574451.
Pamela C. Corley, Paul M. Collins Jr., and Bryan Calvin, Lower Court Influence on U.S. Supreme Court Opinion Content, 73 The Journal of Politics 31 (2011).