A Supreme Court Justice Who Does His Job Well, But Bores The New York Times While Doing It

Conservative columnist Tamara Tabo's take on Adam Liptak's recent (and controversial) article about Justice Clarence Thomas.

The Supreme Court correspondent of the New York Times, Adam Liptak, likes throwing shade on United States Supreme Court Justice Clarence Thomas. Liptak routinely bashes the conservative justice that liberal-leaning lay readers love to hate. But Liptak’s attacks lack substance, offering up only arguments, half-arguments, and snark masquerading as arguments to the extent necessary to help his readers feel justified in patting themselves on their backs.

Liptak’s latest attempt to cut down Justice Thomas appeared in his August 27 New York Times piece, Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own. Liptak writes:

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.

Liptak goes on to deliver a slam, carefully couched in caveats and dressed up in data, suggesting that the Justice’s linguistic habits in majority opinions “illuminate his distinctive role on the court.” But, here, that line is euphemism: when the light shines on Clarence Thomas, Adam Liptak sees something distinctively unimpressive, to say the least.

And Liptak’s only too happy to tell you all about it.

Quoting Isn’t Anywhere Near “Misconduct” Just Because Adam Liptak Wishes It Were

Liptak concedes that quoting in appellate decisions does not “suggest misconduct,” an understatement he tosses into a clause of one sentence.

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Well, no sh*t, citing to the record, the parties’ arguments, or, you know, precedential cases isn’t “misconduct.” An opinion without plenty of one or more of those — that’s where a significant worry about judicial misconduct arises. Liptak assures readers that everything he is about to write about Clarence Thomas using other people’s words isn’t evidence that Thomas is, you know, totally cheating.

That’s like a friend assuring you that the guy she’s setting you up with isn’t a rapist, but his tendency to have rough, ambiguously consensual sex “illuminates his distinctive role” in sexual encounters. Wouldn’t you wonder why she brought it up at all?

Cases Aren’t “Dogs” Just Because They Happen to Bore Adam Liptak

Early on, Liptak unfairly characterizes the caseload carried by Clarence Thomas. Liptak writes:

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, 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.

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After a quick dig at CT’s supposed inability to deal with major legal questions, Liptak gives casual readers the impression that Justice Thomas merely does the grunt work of the Court.

The authorship of opinions during the last term shows that Justice Thomas wrote opinions in more cases than any of his colleagues. Tallying majorities, dissents, and concurrences, Thomas filed 37 opinions in OT 2014. Justice Elena Kagan, by contrast, filed 11 total opinions in the same span.

Even if Thomas tended to handle more of the perfunctory majority opinions than other chambers did, it’s not like CT and his clerks were churning out a handful of no-brainers, then checking out by 4 p.m. Justice Thomas’s tendency to write often and write long when he disagrees with the other members of the Court suggests that Thomas is willing and able to explain and expound when — but only when — he needs to.

Still, is Liptak right about Thomas pretty much just getting “dogs” for majority opinion assignments?

While CT didn’t write for the majority in last term’s super-sexy Obergefell v. Hodges or King v. Burwell, Justice Thomas authored majority opinions in seven cases, the standard number among the justices.

A closer comparison with the writing assignments of other justices reveals that his assignments were not notably less-sexy than, say, Justice Sonia Sotomayor’s. Reed v. Town of Gilbert, for example, was a contentious and high-profile First Amendment case.

Just because Justice Thomas handled majority opinions in commercial and bankruptcy cases doesn’t mean that his work was always mindless, or, as Liptak puts it, “routine” or “inconsequential.” Tell Baker Botts and ASARCO that their case, involving $125 million in fees after a $7 billion judgment, was inconsequential. Tell them that Adam Liptak thinks that this is the kind of opinion writing that the Supreme Court janitor could sub in for.

Opinions Aren’t Sub-Par Just Because They Don’t Help Adam Liptak Get Page Views

Liptak writes:

“Justice Thomas’s seven majority opinions in the last term were on average just 12 pages long and contained little but a summary of the facts and terse summaries of the relevant statutes and precedents.”

This comment and, indeed, much of what follows in the article, raises the question: What does Liptak think an appellate court opinion is supposed to contain, if not this?

Moreover, it implicitly answers in the negative the question: Should Adam Liptak ever be a judge?

Oh, Adam. I like writing about the Court’s monologues on social policy too. It’s much more fun than commenting on clear statements of law based on relevant facts and precedent, presented in economical prose. But I might also get a kick out of scooping a story about the audible flatulence of one of the Justices from the bench. What makes for titillating headlines — which, of course, we appreciate here at Above the Law — is not necessarily what makes for good law.

For parties, practitioners, and lower courts doing their damnedest to live under the fiats of One First Street, I hear that more readable opinions that set out “little but a summary of the facts and terse summaries of relevant statutes and precedents” in fewer pages than Locke’s Essay Concerning Human Understanding would be pretty awesome.

Judges Aren’t Disguising Their Reasoning Just Because Adam Liptak Craves Originality

Liptak closes his article by trying hard to find someone else willing to be outraged. He writes:

Cribbing from briefs is commonplace among trial-court judges, though some appeals court judges frown on it.

“We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own,” Judge Frank Easterbrook of the federal appeals court in Chicago wrote in 1990.

Judge Easterbrook may or may not like a little bloviating from the bench himself. He is, at minimum, wont to be chatty when he’s got an opinion.

In any case, why doesn’t using language from well-written, well-reasoned briefs reveal what the judge takes to be a clear and correct legal analysis? Trying to re-engineer the fine work of others for no other reason than to make your own personal mark is a sign of vanity, not of a jurist who acts efficiently in the service of others.

Adam Liptak, A Supreme Court Critic of Many Words, Many Some Of Them That Don’t Make Sense

A curious final note: An earlier version of the New York Times article was titled “A Supreme Court Justice of Few Words, Many of Them Other People’s.” Then a later version appeared titled, “A Supreme Court Justice of Few Words, Many of Them Not His Own.” The most recent version softens the last clause: “Clarence Thomas, A Supreme Court Justice Of Few Words, Some Not His Own.”

I have no idea how far Liptak or his editors will have backtracked by the time you read this. For all I know, one of the crassest critics of Clarence Thomas may now have a piece under his byline titled, “A Supreme Court Justice Who Does His Job Well But Bores Me Terribly While He’s Doing It.”


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.