Justice Amul Thapar thinks the US is misjudging its judges – one in particular.
A member of the United States Court of Appeals for the Sixth Circuit, Judge Thapar has written a new book praising the legal approach of Justice Clarence Thomas at a time when the Supreme Court and Justice Thomas himself are under fire for both their jurisprudence and lax adherence to. ethical standards.
The intense scrutiny on the high court led to a sharp decrease in public approval. It comes as a string of high-profile, politically charged rulings on race, gay rights and student loans have contributed to a rising public perception that federal judges are politicians in robes who rule based on their personal ideology and are swayed by friends and benefactors.
As an elite member of the judiciary himself, Justice Thapar says such skepticism about the courts could be dispelled, at least somewhat, by more transparency – not necessarily about finances and potential conflicts, but about how they reach their decisions.
“I think judges and others should be more public about our process because I think if people saw what’s going on inside, they would have a lot more faith in the institution,” Judge Thapar, a Trump appointee, said in an interview. . “I just think it would help keep the volume down on everything.”
Right now that volume is pretty high after revelations by ProPublica and others that Justice Thomas and Justice Samuel A. Alito Jr. took luxury vacations and flew on private jets provided by American billionaires without making financial disclosures.
After the revelations – and after Chief Justice John G. Roberts Jr. stiff-armed Democratic calls for the court to better police itself – the Senate Judiciary Committee plans this month to consider legislation imposing new ethics rules on the high court. The bill is unlikely to become law, but it illustrates growing concern about the behavior of members of the court.
“If Roberts has any sense, if he cares about this court, he will issue a code of ethical conduct that could essentially usurp all of this that we do,” said Sen. Richard Blumenthal, Democrat of Connecticut and a member of the Judiciary. Committee. “It is their credibility and legitimacy that are on the line.”
But Judge Thapar says he has no doubts about the rectitude of those on the court, almost all of whom he knows personally.
“I think they are all people of tremendous integrity,” he said. “I would say all nine are not influenced in the way that people think they are. They rule according to what they believe the law is. Period.”
The son of Indian immigrants and a resident of Kentucky, Judge Thapar was named to the Cincinnati-based appeals court by President Donald J. Trump in 2017. He was later included on Mr. Trump’s shortlist for a Supreme Court vacancy in 2018 and had the strong support from Senator Mitch McConnell, the Kentucky Republican and Senate leader who is a longtime advocate for him. He was not elected, but he would likely be considered again by a future Republican president and would be in line to be the first Native American on the Supreme Court.
His book shows him as an unabashed defender of Justice Thomas and the legal concept of originalism, both of which he argues get a bad rap from critics.
“I think originalism is misunderstood, and I think Thomas is the ultimate originalist, so I think maybe he’s perhaps the most misunderstood,” Judge Thapar said.
The book is called “The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him,” a title that drew some eyeballs based on the reporting that found Justice Thomas had a taste for lavish vacations at the expense of Harlan Crow, a billionaire. businessman and Republican mega-donor.
But Judge Thapar says the “people’s” aspect of Judge Thomas’ record is how he consistently applied originalism — often in blistering dissents — to side with ordinary Americans who found themselves up against powerful government forces in cases of eminent domain, education, health care. and crime among other things. The book tells 12 cases in which judge Thomas, according to the opinion of judge Thapar, assiduously followed the original intention of the constitution in helping the upset. He aims to dispel what he says are gross misconceptions about the subject of his book.
“Claiming his views or misrepresenting them, Justice Thomas’ critics claim that his originalism favors the rich over the poor, the strong over the weak, and corporations over consumers,” the book says. Instead, Justice Thapar writes, “The originalism of Justice Thomas more often favors the ordinary people who come before the court – because the core idea behind originalism honors the will of the people.”
Justice Thapar said he did not meet with Justice Thomas for the book, which is based on the opinions of the judges and other writings in the cases. He only recently sent the justice a copy. As he promotes the book, he has found himself dealing with the current furor over the court as much as Justice Thomas’ record — an unusual position in the ranks of federal judges who typically steer clear of the media.
He draws the line, however, in voicing his opinion on whether Congress should subject the high court to the same ethics rules and financial reporting requirements that apply to him and other federal judges.
“The boss has spoken, and I can’t tell my bosses what to do, so whatever my opinions are, I’ll keep them to myself,” he said. Justice Thapar noted that he believes judges should stick to the letter of the law in providing needed information.
“What we don’t want to do is reveal too much,” he said. “So if the rule doesn’t say it, or we ask and they say ‘no,’ you don’t have to.” Otherwise, he said, it results in a “game of gotcha” about what a judge has or hasn’t released.
He said the idea that judges are somehow beholden to friends or others who might give gifts or accommodations is badly misplaced.
“I took an oath, I have to stick to that oath,” he said, saying his opinions on a case are based on the law, “no matter what my friends think, no matter what my parents think, no matter what my wife or children think . And I think all the judges feel very strongly that way.”
As for what happens between Congress and the courts, Justice Thapar said he could not predict how that would turn out, given the role of the judiciary as a separate branch of government and the constitutional status of the Supreme Court.
He is sure of one thing though.
“Hopefully,” he said, “that’s something I never have to judge.”