Amul Thapar

He could one day be nominated to the Supreme Court….This Week on Firing Line 

Thapar: The one commitment I will absolutely make is I do my best to faithfully follow the precedent of the Supreme Court, the precedent of the Sixth Circuit. 

He was former President Trump’s first lower court pick to the federal judiciary. Judge Amul Thapar serves on the 6th circuit court of Appeals in the midwest. The son of Indian immigrants, Thapar has already been on the short-list for the Supreme Court – twice. 

McConnell: Amul has established a reputation as a keen legal mind… 

A favorite of Minority Leader Mitch McConnell, Judge Thapar is now out with a new book, “The People’s Justice,” defending Justice Clarence Thomas’s originalist judicial approach. It comes out just as another explosive session at the Supreme Court wraps… 

Protesters: “we won’t go back” 

Thapar: the implication of his philosophy is that af irmative action is an unconstitutional Band-Aid on a much bigger problem. 

…and questions about ethics mount. 

Thapar: I know almost all of the justices, and I would say that they are people of integrity 

Could Judge Thapar be one day appointed to replace the justice he’s studied, written about, and admires? What does Judge Thapar say now? 

‘Firing Line’ with Margaret Hoover is made possible in part by: Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, The Asness Family Foundation, Charles R. Schwab and by The Rosalind P. Walter Foundation, Damon Button. 

INTERVIEW 

HOOVER: Honorable judge Amul Thapar, welcome to Firing Line. 

THAPAR: Thank you for having me. 

HOOVER: During your confirmation hearings for the Sixth Circuit, you said that you don’t like labels. How do you define your judicial philosophy?

THAPAR: So I think I’m an originalist, but the reason that label isn’t perfect is because there’s many camps of originalism. So I would say I’m an ‘original public meaning’ originalist, and I think that comes right out of the Constitution itself. When you think about the Constitution and who it binds, it binds government officials and military. We take an oath to it. So for the American people, the Constitution is the document that governs those who govern all of us. And I think when you take an oath, you take an oath to this Constitution, it means the words and concepts contained in that document. 

HOOVER: You have a new book. It’s called The People’s Justice. And it examines the jurisprudence of Supreme Court Justice Clarence Thomas. You believe that Justice Thomas is misunderstood. 

THAPAR: Yes. 

HOOVER: Why? 

THAPAR: I think the critics often say that originalism and in turn Justice Thomas, being kind of the ultimate originalist, favors the corporation over the consumer, the strong over the weak, the rich over the poor, and the government over the individual. What I would posit is the book proves the opposite is true. It doesn’t mean he’s always going to rule consistent with those lines, because he will first and foremost follow the law. He will follow the law, but he will always remember there’s real people involved in the cases. And what you will find in his individual writings, he will often have a strong black voice, which is never reported. And he will talk about the real people involved in the case and the struggles they face. 

HOOVER: Give me an example of when you feel he has articulated a strong black voice. 

THAPAR: He talks a lot about what blacks can and have accomplished and how important it is that they not be given barriers, but be given opportunities. And he views, as we know, affirmative action as a barrier to great accomplishments by black Americans. And he views things like vouchers as opportunities. And he believes that vouchers are constitutional, and affirmative action is not. As we now know, the Supreme Court has agreed with him, but he said that throughout his career. 

HOOVER: So you defined your version of originalism as ‘public meaning originalist.’ What does that mean? 

THAPAR: So the easiest way to explain it is the way I explained it to my neighbor. And so maybe I’ll do that. So when I was appointed, as you noted, to the Sixth Circuit in 2017, my neighbor heard about it and he came running down and he said, ‘Oh my gosh, I can’t believe it. You’re an originalist. You’re one of those people.’ And I said, ‘Mike, you’re a businessman, right? You sign contracts with other parties and you put that agreement in writing. So if you have a dispute, when I interpret your contract, should I try to figure out what you all meant, or should I tell you what I think is best for you, or interpret it how I want to interpret it?’ And he said, ‘Of course you should interpret it by what we all meant at the time we signed it.’ And I said, ‘You too are an originalist now.’ That’s all an originalist is doing, is interpreting the document, meaning the Constitution, at the time it was ratified. And as an ‘original public meaning’ originalist, you’re trying to figure out what those words meant to the people that ratified and blessed the document.

HOOVER: How does an originalist deal with the fact that when the document was drafted and most of its amendments were passed blacks were enslaved, women didn’t have the right to vote, men could beat their wives with impunity, the economy was agrarian, the average flintlock rifle took a minute to reload. 

THAPAR: Right. 

HOOVER: How does an originalist deal with the fact that we live in a fundamentally different world with, frankly, expanded rights and freedoms now? 

THAPAR: Yeah. And so I think that’s an important question, and I think it’s important for a number of reasons. First and foremost, if you want to add rights to the document you can amend it. People say, ‘Oh, it’s too hard to amend the Constitution,’ but it’s been done. The second thing is, if you want to pass laws– Title Seven is not in the Constitution. Yet it protects us all. 

HOOVER: When you say Title seven, you mean Title Seven of the Civil Rights Act of 1964. 

THAPAR: Yes. Title Seven was passed by the legislature. You can pass laws at state level. You can pass at local level. The Constitution isn’t the end all, be all. So what it does is it defines what we can do and the rest is left to the American people. 

AFFIRMATIVE ACTION 

HOOVER: Your book was published before the court ruled on the recent affirmative action case. THAPAR: That’s correct. 

HOOVER: And this has been an issue that has been critical for Justice Thomas throughout the course of his career on the bench. What is your response to that decision? 

THAPAR: Well, I think it’s consistent with what he’s been saying throughout his career. One thing he’s pointed out about affirmative action, and The New York Times just a couple of days ago validated this, is that affirmative action benefited the elites, often at the expense of the poor. What Justice Thomas would always say is– I’m putting words in his mouth, but the implication of his philosophy is that affirmative action is an unconstitutional Band-Aid on a much bigger problem. And that bigger problem that we don’t fix is the failing public schools. And what he points out is the reason we need affirmative action is we aren’t fixing what Brown v Board of Education promised these kids, which is giving them an equal education. They’re not getting it. And that’s his bigger beef. The other thing he points out is these quote, unquote ‘elite schools’ that everyone wants to get into might not be all they’re cracked up to be. He points out that 50% of all black doctors, I think, come from historically black colleges, something he’s championed throughout his career. He’s said, ‘It never ceases to amaze me that people always assume that anything that’s predominantly black is inferior.’ He’s talking about historically black colleges. And so it is amazing to him– 80% of all judges, black judges, went to a historically black college. 

HOOVER: Forty percent of black engineers went to a historically black college. 

THAPAR: Right. So he’s been a champion his whole career for historically black colleges. There again is his strong black voice. And his point is, I don’t need someone– You know, he grew up himself in the

segregated South. He recognizes that blacks can accomplish, under the hardest circumstances imaginable, incredible things. 

HOOVER: Let me ask you, in the affirmative action decision there seems to be a disagreement between the conservative majority and the minority in the case, about the meaning of the 14th Amendment and its due process and equal protection clauses. And the conservative majority, including Thomas, says, quote, ‘Eliminating racial discrimination means eliminating all of it.’ And the minority argue that historical data 

leaves, quote, ‘no doubt that the Equal Protection Clause permits consideration of race to achieve its goal.’ Where do you come down? 

THAPAR: Well, as a lower court judge I always come down, no matter the case, with the majority every time, because we have to follow it. We are known as inferior courts. I don’t mean that with any disrespect to any of my colleagues, but that’s because there is a superior court. So vertical stare decisis, which is a process by which we follow majority opinions, is provided for in the constitution itself. 

HOOVER: So an artful dodge, which is compulsory, I think, from your perspective. THAPAR: Yes. 

HOOVER: But do you recognize that there are these two robust arguments about the meaning of the 14th Amendment? 

THAPAR: I think there are robust arguments, but I also think there’s precedent. Right? There is Brown v Board of Education. There’s also what the original meaning of the 14th Amendment meant. And I think it’s interesting about that. But one thing Justice Thomas says in Grutter, the case, his dissent in Grutter, featured in the book, is imagine a scenario where we said, ‘standards have to be higher for this racial group than that.’ Instead of the opposite way. It creates a different set of problems and it creates a different perspective. And that’s what he wants people to think about, I think, when he talks about these things. 

HOOVER: And when you say Grutter, you’re referring to an earlier decision by the Supreme Court that upheld affirmative action. Justice Thomas joined the majority opinion, but then he also wrote a separate 58-page concurring opinion. Given his personal connection to the issue, and his long opposition to it, why do you think he wasn’t given the job of writing it? 

THAPAR: I don’t know the answer to that. That’s an inside baseball question that only the Supreme Court justices can tell you the answer to. And my hunch is you can ask all nine and you won’t get the answer. 

HOOVER: It strikes me that there’s something very personal in terms of his own lived experience when it comes to the decision to overturn affirmative action. 

THAPAR: So let me ask you this, right. You’ll read in the press that he himself benefited from affirmative action. How do we know that? So here’s someone who grew up dirt poor in segregated Georgia. I mean, I’m talking dirt poor. Finishes ninth in his class. 

HOOVER: At Holy Cross.

THAPAR: At Holy Cross. How do we know that affirmative action– Yet, we, they prove him– They prove his own theory that the stigma is immediately attached to him. The only reason he is where he is, many people say, is because of the color of his skin. 

HOOVER: But if you read his book, you can see that he resents that. 

THAPAR: Right. And he thinks that happens to many young people, and they don’t deserve it. In other words, there’s many black students who get to the colleges where they’re at through what he believes is a meritorious route. And yet when people look at them, for better or worse, they assume they benefited from affirmative action. And the other point I can’t leave is that if these schools would change their standards and get rid of legacy admissions and things like that– 

HOOVER: –then it would be far more meritorious across the board. 

THAPAR: It would be far more meritorious across the board. And that is all he’s asking for. He calls them a cognoscenti, meaning the elites. And the elites, he believes, want legacy admissions because they want their own kids to benefit. And in his mind if you get rid of legacy admissions, you could achieve a similar racia– not racial balance, because Asians would do much better, I think the statistics prove out, but it would be at the expense of legacy people, not at the expense of other minorities. 

HOOVER: So, I mean, I just want to sort of pin down this point. In his concurring opinion he writes, “I continue to strongly believe and have never doubted that blacks can achieve in every avenue of American life without the meddling of university administrators.” So how much should a justice’s personal belief and lived experience factor into their decisions? 

THAPAR: I think when people say they don’t, they’re being naive. They definitely factor in. But it doesn’t ever trump the original meaning for Justice Thomas. The original meaning is always going to come first for him, and he’s always going to lay out the original meaning as he understands it. But then he is not going to, he’s not going to forget about the real people in the case. And he’s not going to– He is going to respond. When people that he disagrees with, justices he may disagree with, give their lived experience, he’s going to give his. 

HOOVER: You said he’s going to interpret the original meeting as he understands it. I think originalism then requires justices to have a firm understanding of history. 

THAPAR: It is a lot of work. I always joke to my clerks, if I was an originalist, they could go home at three because I could tell them the answer. But I can’t tell them the answer. We got to do the historical research. 

HOOVER: So there was this really interesting back and forth about the Freedmen’s Bureau in the affirmative action decisions. Justice Thomas calls the Freedmen’s Bureau acts, which passed over the Civil War, a formally race-neutral category because they also helped impoverished white refugees. 

THAPAR: Right 

HOOVER: Historians point out that throughout the period of the 14th Amendment, when it was drafted and ratified, all sorts of race conscious federal and state statutes were passed. So how do you respond to this critique that Justice Thomas is, frankly, cherry picking history.

THAPAR: Yeah, And I think you just evaluate– that’s why you read the opinions. I think you evaluate the weight of evidence on one side– And that’s the beauty of originalism, right? You have to show your work, and people can evaluate is he right as an original matter? You can agree or disagree. But you can evaluate it at least. And the beauty of originalism and how far it’s come is how much of that is now not only in the majorities but in the dissents. 

HOOVER: Yeah, and it’s there. One of the dissents was Justice Jackson. Let me read you one quote which actually addresses the fact that the court says that this affirmative action decision doesn’t apply to military academies. “The court has come to rest on the bottom line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare black Americans and other underrepresented minorities for success in the bunker, not the boardroom. A particularly awkward place to land in light of the history the majority opts to ignore…. To impose this result in that [Equal Protection] clause’s name when it requires no such thing and thereby obstruct our collective progress towards the full realization of the clause’s promise is truly a tragedy for us all.” What’s your reaction? 

THAPAR: I would just say I’m not– I think Justice Jackson has an important point of view, that people need to read her and Justice Thomas together. In other words, you can’t read one in isolation. You need to read them together and decide. The American people can decide who they think is right, but I think it’s better to read them together. And then the other point I come back to is the majority didn’t– I think you can correct me if I’m wrong, but I don’t think the majority decided the military point. I think they dropped a footnote and specifically said that’s not in front of us. We are not deciding it. They can’t decide something that hasn’t been briefed. So they’re not going to decide this issue until it comes in front of them. 

HOOVER: On the original Firing Line, the host, William F. Buckley Jr., had a back and forth with the very liberal California governor, Jerry Brown, about whether the Supreme Court ought to even be weighing in on the nation’s social problems. This discussion takes place in 1975, and the specific social issue being discussed here is bussing. But the broader discussion is still relevant today. Take a look. 

BROWN: In this situation I think the courts can handle it. I think the accumulated wisdom that is certainly accumulating will make its weight in the U.S. Supreme Court, and I prefer to leave it there. 

BUCKLEY: But the Supreme Court is not a legislative body. I didn’t think you would go so far as to say that we ought to permit the Supreme Court to relieve Congress of its essential responsibilities. As the Supreme Court itself told us for a period of a century that some problems are legislative and political in character, others are judicial. And I’m surprised that because you shrink from asking the legislature to do what you think ought to be done, that you somehow hope that nine justices of the Supreme Court will arrogate the authority. 

BROWN: Well first of all, to try to define with simplicity the difference between legislative and judicial isn’t really possible. Certainly I thought that that was the place where many of these things could be corrected, and I’m beginning to have some question about the wisdom of the isolated judiciary arrogating to themselves so many of the social problems of our time.

HOOVER: So, look, today there are, there are issues like affirmative action, abortion, voting rights, presidential power. Is it fair to say that Congress has become so stuck against the backdrop of hyper-partisanship that there has been an overreliance on the court. 

THAPAR: So I’m not going to weigh in to the political issues. But what I would say is, I think it’s important that all of the government branches stay in their lanes. Why? That leaves the power in the American people. So there’s certain things the Constitution takes away that the government can’t do, right? And that is what the Constitution lays out. What Justice Scalia used to say is, what’s left he’d rather have nine people randomly chosen from the phonebook decide than the nine people in the building. And he was somewhat joking. But what he meant is that the American people get to decide the important issues of the day that aren’t in the Constitution and they get to decide them through their elected representatives. Whether that’s in Washington– we always point to Washington but we should remember, there’s also 51, 50 state governments and one other government in the District of Columbia, 51 other governments that can decide these things. 

THE COURT’S ETHICAL CHALLENGES 

HOOVER: You wrote The People’s Justice and The People’s Justice was published before the recent wave of articles about Justice Thomas’s financial disclosures and gifts and trips that were paid for by wealthy friends. What is your reaction to that reporting? 

THAPAR: What I would say is a couple of things. One is that there’s a lot of attacks right now on the court as an institution. I know almost all of the justices, and I would say that they are people of integrity first and foremost. Justice Thomas is friends with everyone. Everyone he meets is his friend. Even if he meets a critic and spends 10 minutes with them, they become a friend of his. There isn’t a person he hasn’t met. It doesn’t matter if you’re his biggest critic. If he meets you, he’s going to be friendly and befriend you. 

HOOVER: In a recent New York Times op-ed, the federal judge, Michael Ponsor wrote that the justices have failed to avoid, quote, “conduct with a dubious aroma.” He isn’t just talking about Justice Thomas. He cites Justice Alito’s travel, Justice Sotomayor using court staff to promote her books, and even Justice Ginsburg, who didn’t recuse herself from cases involving her husband’s law firm. Would it be helpful if the US Supreme Court followed the same formal ethical guidelines that are imposed upon you and the rest of the judges in this country? 

THAPAR: That’s up to them. I don’t tell my bosses what to do. But I would challenge, on any of those justices, any of the ones you just mentioned, anyone to point out where they’ve ruled inconsistent with their priors as a result of any of that. And they haven’t. None of them have. Not Justice Ginsburg, not Justice Sotomayor, not Justice Thomas, not Justice Alito. Their rulings when you read them, you will understand why they’re ruling the way they are. And it has to do with the case or controversy in front of them, whether they decide– what they decide. The chief and Justice Kagan, I think, have spoken about this, and I would defer to them. 

HOOVER: While the justices may not have done anything illegal, is the appearance of impropriety damaging to the court?

THAPAR: I think the constant attacks on the institution don’t help. I think it’s an amazing institution that is doing its job every day and no one can point to a case that was impacted in any way by any of these things. 

HOOVER: But you can see that the appearance of impropriety hurts the court? 

THAPAR: I definitely see that the appearance hurts. And I think it’s important that we as judges and justices be more open about what goes on inside the institution. And–- 

HOOVER: What do you mean by increasing the transparency about how the court works? 

THAPAR: That we talk about it. We work really hard to try and get cases right. And that’s true of everyone, everyone I’ve experienced in the court system, whether I agree with them or disagree with them. They’re not doing– they’re working their hardest. And I think what goes on inside the courts is a really, in my experience, a very positive thing. 

HOOVER: There was an unprecedented leak at the Supreme Court in the Dobbs decision. How did that impact you? 

THAPAR: It didn’t. It was, I mean, it hasn’t happened anywhere else that I’m aware of. 

HOOVER: But that sent, you know, massive tremors through the circuits. For anybody who watches the court, it was a really disturbing event. 

THAPAR: Yeah, I think the breach of trust was disturbing, but that’s my point. It was disturbing because it happened because it’s so rare. Isn’t that amazing? I mean, that’s a great thing that it’s rare, that none of these, these breaches of trust rarely happen in our institution. 

HOOVER: What does that tell you that it did happen? 

THAPAR: It was unprecedented. 

HOOVER: I mean, are there things that need to be fixed at the highest court? 

THAPAR: Oh, I don’t know. I haven’t studied it. I’m sure the chief is paying close attention and has taken into account what happened and has, it seems to me, rectified whatever went on. 

HOOVER: I feel like it’s not rectified because there is an inconclusive determination about what happened. 

THAPAR: Well, but what I would say is it hasn’t happened again. And that’s what’s important I think. I understand what you’re saying and they can– they’re trying to figure that out, as far as I know. Or they figured– they haven’t figured it out. 

HOOVER: You were interviewed by President Trump for at least two vacancies on the Supreme Court, maybe three. And you were– you’re likely to be considered by a future Republican president for an opening on the court. What would you bring to the Supreme Court?

THAPAR: Oh, I’m happy where I’m at. I think that’s– I think it’s important that people enjoy what they’re doing and not worry about the next step. And I love what I do, so I’m not going to worry about that. I don’t know. You know, there’s a lot of amazingly qualified people that they can pick. And I don’t know that I am on that list, and so I’d leave that. 

HOOVER: What was it like to be interviewed by President Trump? 

THAPAR: You know, for a kid who’s the child of immigrants. My dad came here, He grew up dirt poor, single mom in India. His dad passed away when he was two. It was an incredible honor to go to the White House as the child of immigrants. Be appointed three different times by presidents. I mean, only in America can things like this happen. Only in America can a kid rise from being dirt poor in the segregated South to being a justice on the Supreme Court. And so when we get to go there, it’s an amazing honor. 

HOOVER: Justice Thomas is the longest serving associate justice of the Supreme Court. He’s served almost 32 years. He will be retiring at some point. You’ve just written a book about him. Does this book make you a logical candidate to be his successor? 

THAPAR: No. I don’t think Justice Thomas is going to retire anytime soon. I think he has a lot more that he can offer the country, and I think he’s going to continue to do that. 

HOOVER: Judge Amul Thapar thank you for joining me here on Firing Line. And thank you for sharing The People’s Justice with us. 

THAPAR: Thank you for having me.