Study of Supreme Court's copying from briefs does not exonerate Judge Jones

This post is copied from two comments that I posted on a Volokh Conspiracy article titled, "How Much Do Supreme Court Opinions Borrow from the Briefs?" The article begins,

Over at the Glom, David Zaring flags an interesting new paper about Supreme Court opinionwriting: Pamela C. Corley, The Supreme Court and Opinion Content, Political Research Quarterly, Vol. 61, No. 3, 468-478 (2008). Here's the abstract:

Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.

Here is the first of my two comments:
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Kenvee said (9.11.2008 9:20am) --

Anyone whose submitted more than a handful of briefs should have experienced at least a couple of cases where you recognize your arguments and phrases being used in the court's opinion. That's sort of the point of writing a brief -- the ideal would be for the court to just plug your brief wholesale into their opinion.

Wholesale verbatim or nearly verbatim copying of one side's brief -- as by adopting one side's brief as the opinion -- is severely frowned upon by the courts and can be grounds for reversal. This is discussed in an excellent paper titled "Analogical Legal Reasoning and Legal Policy Argumentation: A Response to Darwinist Defenders of Judge Jones' Copying from the ACLU" by the Discovery Institute's Casey Luskin. The paper has the following quote from a Supreme Court opinion:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case. Judge James Skelly Wright quoted in United States v. El Paso Natural Gas Company 376 U.S. 651, 657, footnote #4 (1964) (internal citations and quotations omitted)

Luskin's paper addressed the issue of a particularly notorious case of a judge's one-sided copying of the briefs: in the Kitzmiller v. Dover intelligent design case, Judge John E. Jones III copied the ~6000 word ID-as-science section of the opinion nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendant's opening post-trial brief and the plaintiffs and defendants answering post-trial briefs. The Discovery Institute's study of Judge Jones' copying covered only a comparatively small part of the opinion, the ~6000 word ID-as-science section, but this section is considered by many to be the centerpiece of the opinion. The most important part of this study is the side-by-side comparison of the texts of the opinion and the ACLU's opening post-trial brief -- percentage figures for copying can be very misleading. Because the original meaning of text can be retained after the text has been drastically altered by substitution of synonyms, insertion or deletion of superfluous or non-essential words, paraphrasing of statements, and/or scrambling of sentences and/or paragraphs, text-comparison computer programs are simply not a reliable means of comparing texts for similarity of ideas, particularly when the word-count correlation figure is low. The only reliable way of comparing two texts is by a side-by-side visual comparison. The Discovery Institute study placed corresponding statements from the two texts side by side for a visual comparison, and the high degree of correlation is apparent. An attempt was made to compare the two texts by means of a computer program, producing grossly erroneous results, as discussed in an article on my blog.

Other considerations are the extent of one-sidedness in the copying and whether the copying covers a whole issue of the opinion -- the copying studied in Kitzmiller v. Dover covered a whole issue, the ID-as-science issue. I would not go so far as to say that this Supreme Court study exonerates Judge Jones from charges of excessive one-sidedness in his copying of the ID-as-science section of the Dover opinion.

IMO verbatim or near verbatim copying from the briefs is OK so long as it is done even-handedly by addressing both side's arguments. By copying rebuttals as well as opening arguments, judges can be even-handed even while not doing any independent thinking. The argument that it is OK to ignore one side's arguments if those arguments have no merit does not hold water because if those arguments are that bad, then they should be addressed in order to refute them. Judge Jones showed no evidence that he read the ID-as-science sections of any post-trial brief other than the one that he copied from. Jones must have figured that he could get away with such one-sided copying because he knew the case was unlikely to be appealed because the pro-ID members of the board had been replaced by anti-ID members.

Of course, the Supreme Court could get away with wholesale copying where a lower court could not. It is noteworthy that Corley's study found that the Supreme Court is more likely to copy from the briefs in low-profile cases than in high-profile cases, because the court would understandably want to avoid being accused of excessive one-sidedness in high-profile cases. That's why we often see the Supreme Court thoroughly addressing the losing side's arguments in high-profile cases, e.g., "we find this argument to be unpersuasive ... blah, blah, blah." But Kitzmiller v. Dover had an extremely high profile, so Judge Jones' one-sided copying should have gotten much more bad publicity than it got.

Also, the Discovery Institute's Evolution News & Views website has the following articles about the one-sided copying in the Kitzmiller case --

Study Shows Federal Judge Copied ACLU Text in Dover Intelligent Design Ruling

Judge Jones on Copying ACLU: No Comment

Judges' Copying of ACLU "Highly Frowned Upon" by Courts

Backgrounder on the Significance of Judicial Copying

Judge Jones and the Shattering of Darwinist Illusions

Local Dover Media Promotes False Information on Judge Jones Study

Darwinists Desperate to Defend Kitzmiller Copying

Here is my second comment:

Also, there is a huge difference between copying rebuttals and copying opening arguments, because the rebuttals always address the opposing side's arguments whereas the opening arguments do not necessarily address the opposing side's arguments. Kitzmiller v. Dover's ID-as-science section was copied entirely from the ACLU's opening post-trial arguments alone, and that is super bad. As I said, there is not a shred of evidence that Judge Jones even read the ID-as-science section of any post-trial brief other than the one that he copied from. He figured he could get away with his extremely one-sided copying because he knew the case was not likely to be appealed.

The Darwinists are of course going to condemn me for criticizing their hero Judge Jones even though I am being quite generous to him by not expecting him to write his own original opinion but only expecting him to be even-handed in copying from the briefs.

Also, as I said, the use of text-comparison computer programs to try to determine the extent to which two different texts contain the same ideas is completely unreliable.

I assert that there is a lot more to this brief-copying thing than first meets the eye.

Of course, as always, my main position is that the courts should declare the evolution controversy to be non-justiciable.
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