Justice Amul Thapar thinks America is misjudging its judges, one in particular.
A member of the United States Court of Appeals for the Sixth Circuit, Justice Thapar has written a new book extolling Justice Clarence Thomas’s judicial approach at a time when the Supreme Court and Justice Thomas himself are under impeachment for both their jurisprudence and their poor adherence to ethical standards.
Intense scrutiny in the high court resulted in a fort decline in public approval. It comes as a series of high-profile and politically charged rulings on race, gay rights and student loans have helped fuel public opinion that federal judges are robed politicians who govern by their personal ideology and are influenced by friends and benefactors.
As an elite member of the judiciary, Justice Thapar says such skepticism about the courts could be allayed, at least in part, by more transparency, not necessarily about finances and potential conflicts, but about how they make their decisions .
« I think judges and others should be more public about our trial because I think if people see what’s going on inside, they’ll have a lot more faith in the institution, » Trump-appointed Judge Thapar said in an interview. . « I just think it would help turn the volume down on everything. »
Right now that volume has surged pretty high after revelations by ProPublica and others that Judge Thomas and Judge Samuel A. Alito Jr. have taken luxury vacations and flown on private jets staffed by American billionaires without making financial disclosures.
In the wake of the revelations — and after Democratic Chief Justice John G. Roberts Jr. asked the court to improve its policing — the Senate Judiciary Committee is scheduled this month to consider legislation imposing new rules ethics in the high court. The bill is unlikely to become law, but it illustrates a growing unease with the conduct of court members.
« If Roberts has any common sense, if he cares about this court, he’s going to issue a code of ethical conduct that could basically usurp all of these things that we’re doing, » said Senator Richard Blumenthal, a Democrat from Connecticut and a member of the judiciary. Committee. « It is their credibility and legitimacy that is at stake. »
But Justice Thapar says he has no doubts about the righteousness of those in court, nearly all of whom he knows personally.
« I think they’re all people of immense integrity, » she said. “I would say all nine are not affected in the way that people think they are. They rule according to what they believe is the law. Period. »
The son of Indian immigrants and a Kentucky resident, Judge Thapar was nominated to the Cincinnati Court of Appeals by President Donald J. Trump in 2017. He was later included on Trump’s shortlist for a vacant Supreme Court seat in 2018 and had the strong support of Senator Mitch McConnell, the Kentucky Republican and Senate leader who is a longtime supporter of hers. He was not selected, but would likely be considered again by a future Republican president and be the first American Indian on the high court.
His book shows him as an unabashed defender of Judge Thomas and the legal concept of originality, both of which he claims are getting a bad rap from critics.
“I think originality is misunderstood, and I think Thomas is the ultimate originalist, so I think maybe he might be the most misunderstood,” Judge Thapar said.
The book is titled « The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, » a title that caused some bewilderment given the report that found Justice Thomas had a taste for lavish vacations at the expense of Harlan Crow, a billionaire businessman and Republican megadonor.
But Justice Thapar says the « popular » aspect of Justice Thomas’ record is how he has consistently applied originality — often in violent dissent — to side with ordinary Americans who have faced powerful government forces. in cases of eminent domain, education, health care, and crime among other matters. The book recounts 12 cases in which Judge Thomas, according to Judge Thapar, assiduously followed the original intent of the Constitution by siding with the injured parties. It aims to dispel what he feels are gross misconceptions about the subject of his book.
« By choosing his views or twisting them, Judge Thomas’s critics say his originality favors the rich over the poor, the strong over the weak, and corporations over consumers, » the book says. Instead, Justice Thapar writes, « Judge Thomas’s originalism most often favors ordinary people who come before the court, because the central idea behind originalism is to honor the will of the people. »
Justice Thapar said he did not meet with Judge Thomas for the book, which is based on the judges’ opinions and other writings about the cases. He only recently sent a copy to the judge. While promoting the book, he was faced with the current furor on the court as much as Judge Thomas’s record—an unusual position for a federal judge, as they usually stay away from the media.
He draws the line, however, in expressing his opinion that the high court should be subject by Congress to the same ethics rules and financial reporting requirements that apply to him and other federal jurists below the high court .
« 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, » she said. Justice Thapar noted that he believed judges should follow the letter of the law in providing the requested information.
« What we don’t want to do is reveal too much, » she said. « So if the rule doesn’t say, or we ask and they say ‘no,’ you don’t have to. » Otherwise, she said, it results in a « game of gotcha » about what a judge has or hasn’t made public.
He said the notion that judges are somehow related to friends or others who could provide gifts or accommodations is misplaced.
« I took an oath, I have to fulfill that oath, » he said, saying his views on a case are based on the law « it doesn’t matter what my friends think, it doesn’t matter what my parents think, it doesn’t matter what my wife or I think the kids, and I think all the judges feel strongly that way.
As for what goes on between Congress and the courts, Justice Thapar said he could not predict how this would play out, given the judiciary’s role as a separate branch of government and the constitutional status of the Supreme Court.
Of one thing, however, he is sure.
« I hope, » she said, « that it’s something I never have to comment on. »