With High Court Under Fire, a Top Federal Judge Suggests More Sunlight

Judge Amul Thapar thinks America is misjudging its judges — one in particular.

A member of the U.S. Court of Appeals for the Sixth Circuit, Judge Thapar has written a new book extolling the judicial approach of Justice Clarence Thomas at a moment 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 has led to a sharp drop in public approval. It comes as a string of high-profile, politically charged rulings on race, gay rights and student loans has contributed to a rising public view 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, Judge 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 goes on on the inside, they would have so much more faith in the institution,” Judge Thapar, a Trump appointee, said in an interview. “I just think it would help to turn down the volume on everything.”

Right now that volume is turned up pretty high after disclosures 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.

In the wake of 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 forcing new ethics rules on the high court. The bill is unlikely to become law, but it illustrates growing unease about the conduct of members of the court.

“If Roberts has any sense whatsoever, if he cares about this court, he will issue a code of ethical conduct which could essentially usurp all this stuff we’re doing,” said Senator Richard Blumenthal, Democrat of Connecticut and a member of the Judiciary Committee. “It is their credibility and legitimacy that’s on the line.”

But Judge Thapar says he has no doubts whatsoever about the rectitude of those on the court, nearly all of whom he knows personally.

“I think they’re all people of immense integrity,” he said. “I would say all nine are not influenced in the way people think they are. They rule according to what they believe the law is. Period.”

The son of Indian immigrants and a Kentucky resident, 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 short list for a Supreme Court vacancy in 2018 and had the strong backing of Senator Mitch McConnell, the Kentucky Republican and Senate leader who is a longtime advocate for him. He wasn’t selected, but he would likely be considered again by a future Republican president and would be in line to be the first Indian American on the high court.

His book shows him to be an unabashed defender of Justice Thomas and the legal concept of originalism, both of which he argues are getting a bad rap from critics.

“I think originalism is misunderstood, and I think Thomas is the ultimate originalist, so I think maybe he may be 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 has elicited some eye rolls given the reporting that found Justice Thomas had a taste for lavish vacations at the expense of Harlan Crow, a billionaire businessman and Republican megadonor.

But Judge Thapar says the “people’s” aspect of Justice Thomas’s record is how he has consistently applied originalism — often in blistering dissents — to side with ordinary Americans who have found themselves up against powerful government forces in cases of eminent domain, education, health care and crime among other issues. The book recounts 12 cases in which Justice Thomas, in Judge Thapar’s view, assiduously followed the original intent of the Constitution in siding with the aggrieved. He aims to dispel what he says are gross misconceptions about his book’s subject.

“By cherry-picking his opinions or misrepresenting them, Justice Thomas’s critics claims that his originalism favors the rich over the poor, the strong over the weak and corporations over consumers,” the book says. Instead, Judge Thapar writes, “Justice Thomas’s originalism more often favors the ordinary people who come before the court — because the core idea behind originalism is honoring the will of the people.”

Judge Thapar said he did not meet with Justice Thomas for the book, which is based on the justices’ opinions and other writings on the cases. He only recently sent the justice a copy. While he promotes the book, he has found himself addressing the current furor over the court as much as Justice Thomas’s record — an unusual position for a federal judge, as they usually steer clear of the media.

He draws the line, though, at expressing his view on whether the high court should be subjected by Congress to the same ethics rules and financial reporting requirements that apply to he and other federal jurists below the high court.

“The chief has spoken, and I can’t tell my bosses what to do, so whatever my opinions are, I will keep them to myself,” he said. Judge Thapar did note that he believed judges should stick to the letter of the law in providing the information that is required.

“What we don’t want to do is over-disclose,” 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 has not made public.

He said the idea that judges are somehow beholden to friends or others who might provide gifts or accommodations is badly misplaced.

“I took an oath, I have to adhere to that oath,” he said, saying his views 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 kids think. And I think all the justices very strongly feel that way.”

As for what happens between Congress and the courts, Judge Thapar said he could not predict how that would turn out, given the judiciary’s role as a separate branch of government and the Supreme Court’s constitutional status.

He is sure of one thing, however.

“Hopefully,” he said, “that is something I never have to rule on.”

Carl Hulse is chief Washington correspondent and a veteran of more than three decades of reporting in the capital. More about Carl Hulse

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