Bench Memos

Law & the Courts

Judge Thapar and Judicial Duty

Amul Thapar (Wikimedia Commons)

Sixth Circuit Judge Amul Thapar is one of the six judges whom President Trump is considering to fill the Supreme Court vacancy created by Justice Kennedy’s retirement. For the last seven years Judge Thapar and I have co-taught an intensive week-long class about judicial philosophy at the University of Virginia Law School. In this context, I have learned much about his approach to judging and his understanding of the judicial role. Whether or not President Trump selects him to fill Justice Kennedy’s seat, the qualities of intellect, character, and conviction that qualify Judge Thapar to be a serious candidate for such a significant position are worth noting and celebrating.

Judge Thapar is an originalist in matters of constitutional interpretation, which means that he believes the words of the Constitution should be understood to mean what they were understood to mean when the Constitution was ratified. He is a textualist when it comes to interpreting statutes, which is to say that he believes judges should interpret statutes as they are actually written and not as they might have been written to achieve a judicially-favored outcome.

To put some flesh on these theoretical bones, it might be useful to recount the fact that, when we first taught our course, Judge Thapar wanted to call it “Judicial Modesty.” We perhaps should have called it “Judicial Duty.” Judge Thapar wanted the title to reflect what he most wanted the students to appreciate, namely that judges have a limited role in our constitutional system. Their authority is constrained by constitutional and statutory texts; they have no legitimate authority to change the meaning of the Constitution or to rewrite statutes. Lower-court judges are also constrained by the legal precedents set by the courts above them. However, as important as the constraints, Judge Thapar also wanted to emphasize that judges have the unequivocal duty to interpret legal texts so as to get the law right. Always the law constrains judges; and always it requires them to obey its commands.

Judge Thapar is a masterful legal analyst who can sort through complex statutes as well as anyone. And as a lower-court judge, he faithfully follows precedent. At the same time, he often writes separately to suggest that the precedent itself might be in error and ought to be reconsidered.

In his willingness both to apply precedent and to call out legal error when he sees it, Judge Thapar resembles Justice Thomas who, in 27 years on the Court, has been assiduous in his efforts to discern the true original meaning of the constitutional text and to recommend that certain precedents be reexamined. Indeed, Judge Thapar has a great deal in common with Justice Thomas. As judges, they share unyielding devotion to the Constitution and the rule of law; each has the courage of his convictions even when he has to go it alone — as he often has. As individuals, each is a warm, gregarious, and caring friend. The students in our class, for example, came away with both great respect for Judge Thapar as a teacher and deep affection for him as a person. Like Justice Thomas, Judge Thapar is warmhearted and kind. He is similarly conscious of the historic significance they share, Thomas as only the second African American to serve on the Supreme Court and Thapar as the first South Asian-American federal judge. It may be that their shared history deepens both their respect for our Constitution and their unshakeable commitment to their judicial responsibilities. It would be altogether fitting were they to become colleagues on the Court.

Lillian BeVier — Lillian BeVier is the David and Mary Harrison Distinguished Professor of Law Emeritus at the University of Virginia School of Law.

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