They set up a special room at Mohunk Mountain House, where I was staying when the Senate confirmation hearing was being held. There was a television, a big one for the time at 36 inches, at the front of the room, and chairs jammed everywhere. Each held a butt. That’s how interested people were to hear Anita Hill talk about coke cans, pubic hairs and Clarence Thomas, a black man appointed to the Supreme Court of the United States of America.

There were strong positions taken about whether he was unfit because of his alleged dealings with Hill, but my thought was that we could find something a whole lot better, smarter, to be one of the Nine comprising an entire branch of government.  It wasn’t good enough that maybe he didn’t sexually harass Hill. Weren’t we entitled to a better choice altogether?

So from the start, I was no fan.  Today, he’s still my second least favorite justice, a close eighth to Sam Alito, who I hear is a fun guy to hang with in a bar.

And yet, Adam Liptak’s article outraged me. Liptak sits in one of the most important seats in media, the New York Times’ Supreme Court correspondent. He may not be the most knowledgeable pundit on the law, but his voice is one of the loudest because his soapbox is bigger than anyone else’s. That’s an awesome responsibility because he need only whisper, just hint, to make his point.

His point?  That Supreme Court Associate Justice is lazy and dishonest.

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.

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.

So it doesn’t “suggest misconduct,” but just lazy and dishonest. Combined with the headline (which morphed to greater vagaries during the day), there was no doubt what the message was.  After all, if the message wasn’t that he was lazy and dishonest, then there would no purpose whatsoever to publishing the article.  And given that he sits in the Thurgood Marshall seat, that he’s the only black justice, who happens to be lazy and dishonest, is impossible to ignore.

The crux of Liptak’s post is that a study was done, showing Thomas to crib from briefs for his opinion far more than any other justice, and that he can’t even be bothered to steal for himself, but has his clerks do it for him.

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. Since opinions are signed by justices but often drafted by law clerks, it may be that any borrowed language was the work of Justice Thomas’s clerks.

When Justice Thomas announces his majority opinions from the bench, he sometimes seems to be reading from materials prepared by others. In June, he slipped in a playful aside. What he had just read, a description of synthetic drugs, he said to laughter, was “a sentence which I completely do not understand.”

But it’s not misconduct, as Liptak soberly reminds us. Just lazy and dishonest. From the black judge. Who’s lazy and dishonest, but it’s not misconduct.

At Volokh Conspiracy, Orin Kerr dives deep into the study purportedly relied upon by Liptak.

The implication is that Justice Thomas is not doing his job. Not only does he not ask questions, he doesn’t even think for himself.

For the New York Times audience, it’s the kind of ideological catnip that is likely to make a lasting impression.

If you look at the data, though, they don’t support the conclusion that Justice Thomas is an outlier.

If you’re not big into numbers, here’s the TL;dr version:

Feldman compared how much of majority opinions by different Justices contained language from the merits briefs.

Here are the percentages in descending order:

Thomas: 11.29%
Sotomayor: 11.04%
Ginsburg: 10.55%
Alito: 9.48%
Roberts: 9.20%
Scalia: 8.74%
Kennedy: 8.36%
Breyer: 7.56%
Kagan: 7.13%

So Thomas is a whole .25% higher than Sotomayor? That’s it? Somebody had to be on the bottom, but AYFKM?  A .25% difference, and Liptak writes an article about how Thomas is lazy and dishonest?

Worse still, there is nothing whatsoever wrong with using language from the merits brief in an opinion. Hell, it’s what lawyers dream about, pray for, want more than anything when laboring over every word in their briefs. This is more than perfectly acceptable. It’s the best we can do.

When Justice Thomas’ opinions say something stupid, I wouldn’t hesitate to rip him a new one. It’s charitable to say Thomas doesn’t fear standing alone, but that doesn’t justify damning him for this “distinctive role” as the laziest and most dishonest justice.

Like judges, Liptak no doubt has his personal prejudices. We all do, and since we’re all big boys and girls here, we can admit that none of us are as fair and neutral as we like to think we are. But when one has permission to use a soapbox as big and loud as the New York Times Supreme Court Correspondent, as opposed to say my puny soapbox at SJ, you don’t get to use it to flog some petty bias over a dubious study with a “distinction” so trivial as to mean nothing, all of which leads to the chance to call a Supreme Court Justice lazy and dishonest.

With great power comes great responsibility. Liptak blew his cred this time, and for nothing.  Readers brought this up to the Times’ Public Editor, who tried to salvage Liptak’s credibility by the most meager of admonishments:

I thought the article’s language was quite careful, and, from what I can tell, accurate. But 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.

Careful? [Weasel word] Accurate? But the impression? Well, blame the headline, which Liptak didn’t write, for “suggesting” something improper.

Adam Liptak isn’t some babe in the woods, fascinated by the tiniest of empirical distinctions on metrics of no consequence, such that he felt compelled to use his mountain of a soapbox to lead to the only conclusion one could draw.  And if he lacks the self-control to take the cheap shot by broadcasting his disdain for a justice over nothing, then he is unworthy of the public trust to report on the Supreme Court of the United States of America for the paper of record.