The New York Times on August 27 published a story headlined "Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own."
The article, written by Adam Liptak, employed the word "cribbing," and contained this information:
Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.
The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.
Although Liptak cautions that Justice Thomas is not plagiarizing, you could be forgiven for thinking just than, if you don't get down to the story's fourteenth paragraph (!), where we learn that ALL Supreme Court justices borrow language from previous legal briefs:
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.
Justice Elena Kagan, who has a livelier writing style than those three, had the lowest rate, at 7.1 percent; Chief Justice Roberts was in the middle, at 9.2 percent.
Chief Justice Roberts was exceptionally influential when he was a lawyer in private practice. Supreme Court opinions shared language with his briefs at a rate of 13.2 percent.
But the news that Justice Thomas uses language from legal briefs at the rate of less than two percent above the average isn't that much of a story, is it?
Nor is it particularly earth shattering that Justice Thomas uses language from legal briefs at the rate of about two and a half percent more than the more parsimonious Chief Justice Roberts.
And I am not ready to condemn Thomas for being about four percent higher in his use of language from briefs than that literary live wire, Justice Elena Kagan.
I wasn't going to write about the dishonest Liptak story, but then the latest batch of Clinton emails came out, revealing that Oct. 24, 2010, Clinton crony Sidney Blumenthal wrote the then-Secretary of State a seven-page memo entitled “Memo on Impeaching Clarence Thomas." What, you might ask, has Justice Thomas done from the bench of the highest court that could be impeachable?
The answer is nothing. Blumenthal's subject line was “H: Brock memo here, have many more ideas on this. S.”
Brock is David Brock, founder of Media Matters, and the ideas reportedly related to Anita Hill, whose allegations about a relationship with Justice Thomas were a sensational part of his confirmation hearings nearly a quarter of a century ago, in 1991. (The news reporting of the Thomas hearing that constantly featured women who claimed to speak for all women, but didn't, was a factor in the founding of IWF.)
Like Justices Scalia and Alito, Justice Thomas is loathed by the left. But I think he is loathed more than the others for the simple reason that his confirmation, after the left marshaled all the forces possible against him, is a Waterloo they'll never forget. His very presence on the bench rankles with them more than anything else in the American justice system.
Multos annos, Justice Thomas!