Federal judge defends Clarence Thomas in law school lecture
Ryan Peters | Wednesday, August 30, 2023
Judge Amul Thapar, who serves on the U.S. Court of Appeals for the Sixth Circuit, defended Supreme Court Justice Clarence Thomas in light of recent scrutiny in a lecture at the Notre Dame Law School on Tuesday.
Thapar, who was on former President Donald Trump’s shortlist for a 2018 Supreme Court vacancy, praised Thomas for his jurisprudence, care for people and presence as a “strong Black voice.”
In June, Thapar released his book, “The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him.”
Thomas has recently come under fire from critics for allegedly violating court ethics. Thapar said criticism is nothing new for Thomas, who has experienced it since his nomination to the court over 30 years ago.
“I think the reason that the critics keep going after him is the amount of influence he has,” Thapar said.
Thapar, like Thomas, identifies as an originalist. Thapar and Thomas’ originalist judicial interpretation broadly means they try to identify what the framers intended when writing the Constitution.
Thomas’ commitment to originalism has had a large impact on jurisprudence, Thapar explained.
“He puts originalism first and foremost, nothing else comes first,” he said.
Thomas’ strict adherence to originalism even influenced famed originalist and Thomas’ former colleague, the late Supreme Court Justice Antonin Scalia.
“And by sticking to his principles, he’s moved justices and he’s moved jurisprudence,” Thapar said.
The book details several cases that Thapar said combat common attacks on originalism and Thomas. Namely, he hopes they dispel the criticism that originalism favors the powerful over the weak. Thapar said the cases in the book are examples that prove this narrative is backwards.
“What I realized is most often, not always, but most often the opposite is true,” he said. “And the cases in the book prove it. Why is the opposite true? All he’s trying to do is reach the original meaning. It makes sense because the document, the Constitution, our laws, are written often to protect us from predatory individuals, predatory government and predatory corporations.”
Thapar argued against the narrative that originalism has favorites. Originalism only favors the Constitution, and the nature and purpose of the document often leads to rulings in favor of the ordinary citizen, he said.
“That doesn’t mean he’s always going to rule that way, in favor of the little guy,” Thapar said. “It just means when the document counsels it, he will.”
Thomas gets little recognition for his presence as the second Black justice in Supreme Court history, Thapar said.
“He has a strong Black voice that no one talks about,” he said.
Thapar gave two examples that highlight how Thomas’ originalist philosophy and judicial track record at times benefits Black people. First, Thapar said Thomas has consistently fought against the evolution of eminent domain issues. The Fifth Amendment states that the government cannot take private property for “public use, without just compensation.”
Over time, the Court expanded the term to include “public purpose.” Thomas has advocated to return to eminent domain cases considering the original term “public use” instead of “public purpose.”
Thapar said Thomas’ view would limit the ability of government to use eminent domain, which disproportionately impacts Black people.
Second, Thapar said Thomas has long championed Historically Black Colleges and Universities (HBCUs). Thomas has pointed out the large percentage of Black judges, doctors and engineers that come from HBCUs, Thapar explained. Additionally, Thapar said Thomas points out that Xavier University of Louisiana, an HBCU, is responsible for raising the highest percentage of students out of poverty and into the middle class of any school in the U.S.
This, Thapar argues, paired with his support for school vouchers as a constitutional solution to struggling public schools, displays a jurisprudence and vision that can benefit Black students in the long run.
One reason Thapar named the book “The People’s Justice” is because of instances of Thomas recognizing “real people” who have come in front of him. One instance is Kathy McKee, whose suit accusing Bill Cosby of defamation after he allegedly raped her was declined to be reviewed by the Supreme Court. In an unrelated case two years later, Thomas named McKee in his opinion.
“He doesn’t forget the real people in front of him,” Thapar said.