Another New York Times hatchet job on Justice Thomas

By Dave Andrusko

Editor’s note. Margaret Sullivan, recently “Public Editor” (i.e., ombudsman ) for the New York Times, wrote her first column today as the Washington Post’s “Media Columnist.” We talk about her first column elsewhere today. Suffice it to say, Sullivan tells us she will use her space to write “about free speech, digital innovation and transformation, media literacy and ethics, and investigative reporting.”

The following is our take on one example of when Sullivan wrote on issues related to us as the New York Times’ fifth Public Editor. It ran in September 2015.

(A tip of the hat to Orin Kerr ,writing in the Washington Post.)

Margaret Sullivan

Margaret Sullivan

Given the New York Times’ biases, both in news stories and editorials, occupying the post of Public Editor (aka Ombudsman) can really be a full-time job.

Today Margaret Sullivan responded to a letter, representative of “many,” which gently critiqued a recent story about Supreme Court Justice Clarence Thomas.

The gist of the complaint was that the headline for the story written by Adam Liptak–“Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own”– came very close to suggesting Thomas was guilty of plagiarism. However if you read the first 15 paragraphs you’d see that he was guilty of nothing of the sort.

Sullivan gave Liptak ample space to defend his story. She then judged Liptak’s language to be “quite careful, and, from what I can tell, accurate,” but ended that “the overall impression it left may well have overstated the case.”

“Part of that was conveyed by the headline, ‘Clarence Thomas, a Supreme Court Justice of Few Words, Some Not His Own,’ which, while also accurate, seemed to suggest something close to plagiarism.”

“Accurate”? In a very limited, strained sense, yes, but, again, totally misleading.

It is true that words from the briefs filed by lawyers appeared in Justice Thomas’s opinions. So some of the words were “not” Thomas’s.

But this was true for all the justices. Some of the words in their opinions were “not” their own, either, but came from briefs.

Okay, a possible fallback to “prove” that Thomas cannot think for himself would be that his majority opinions contained appreciatively more “language from the merits briefs,” to quote Kerr.

Kerr checked around, got the numbers for all the justices and found that Justice Thomas and Justice Sonia Sotomayor had virtually identical numbers.

The numbers seem at odds with Liptak’s claim. Yes, Thomas has the highest shared language percentage. But it’s bizarre to say that his numbers are “unusually high,” that Thomas “relies heavily” on outside language or that “many” of his words are “not his own.” All of the Justices share language from the briefs at roughly similar rates: about 7 to 11 words out of 100. And the difference between Thomas and Sotomayor is a rounding error. It’s only 2.5 words out of 1,000. In a typical majority opinion, that’s probably the difference between including a short parenthetical quote from a precedent and leaving it out. [My emphasis.]

Kerr went on to analyze two other studies Liptak used and concluded, “I don’t see how these studies support the Times’s presentation of Justice Thomas as an outlier.”

So why the not-so-subtle hints that Justice Thomas is not up to job? Kerr (a former clerk at the Supreme Court) put it this way.

“For the New York Times audience, it’s the kind of ideological catnip that is likely to make a lasting impression. No wonder it has been a main link on the Times homepage for most of the last day.”

The Times has despised Justice Thomas from the day he was nominated to the High Court. What a coincidence that Liptak would happen to be able to conclude that Justice Thomas was just as incompetent as the Times has always insisted he was.

Not exactly fair and balanced.