Is that affirmative action is an unconstitutional bandaid on a much bigger problem. [margaret] and ethics questions mount. I know almost all the justices and i would say that they are people of integrity. [margaret] could judge thapar one day be appointed to replace t justice hes studied, written about and admires . What does judge amul thapar say now . [announcer] 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. Swab and by the rosalyn p. Walter foundation and damon button. Horable judge amul thapar, welcome to firing line. Thank you for having me. During your confirmation hearings for the sixth circuit, you said that you dont like labels, how do you define your judicial philosophy . So i think im an originalist but the reason that label isnt perfect is cause theres many camps of originalism. So i would say im 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 officialand military. We take an oath to it. So for the American People, the constitution is the document that governshose 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. You have a new book, its called the peoples justice and it examines the jurisprudence of Supreme Court Justice Clarence thomas. You believe that Justice Thomas is misunderstood . Yes. Why . I think the critics often say that originalism and in turn Justice Thomas being kinda 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 doesnt mean hes always gonna rule consistent with those lines because he will first and foremost follow the law. He will follow the law but heill always remember theres 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. Give me an example of when you feel he is articulated a strong black voice. He talks a lot about what black people 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 affirmate action is not. As we now know, the Supreme Court has agreed with him but he said that throughout his career. So you defined you version of originalism as public meaning originalist. What does that mean . So the easiest way to explain it is the way i explained it to my neighbor. And so maybe ill 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 cant believe it, youre an originalist. Youre one of those people. And i said, mike, youre 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 wanna 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 two are an originalist now. Thats all an originalist is doing is interpreting the document, meaning the constitution, at the time it was ratified. D as an original public meaning originalist, youre trying to figure out what those words meant to the people that ratified and blessed the document. 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 didnt have the right to vote, men could beat their wives with impunity, you know, the economy was agrarian. The average flintlock rifle took a minute to reload. Right. How does an originalist deal with the fact that we live in a fundamentally different world with frankly expanded rights and freedoms now . Yeah and so i think thats an important question and i think its 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, its too hard to be amend the constitution but its been done. The second thing is, if you wanna pass laws, title vii is not in the constitution, yet it protects us all, right . When you say title vii, you mean title vii at the Civil Rights Act of 1964 . Yes, title vii was passed by the legislature. You can pass laws at state level, you can pass at local level. The constitution isnt 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. Your book was published before the court ruled on the recent affirmative action case. Thats correct. 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 . Well, i think its consistent with what hes been saying throughout his career. One thing hes pointed out about affirmative action and the New York Times just a couple days ago validated this that affirmative action benefited the elites often at the expense of the poor. What Justice Thomas would always say is or im putting words in his mouth but the implication of his philosophy is that affirmative action is an unconstitutional bandaid on a much bigger problem. And that bigger problem that we dont fix is the failing public schools. And what he points out is the reason we need affirmative action is we arent fixing what brown v board of education promised these kids which is giving them the unequal education. Theyre not getting it. And thats 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 theyre cracked up to be. He points out that 50 of all black doctors i think, come from historically black colleges, something hes championed throughout his career. He said, it never ceases to amaze me that people always assume that anything thats predominantly black is inferior. Hes talking about historically black colleges. And so it is amazing to him, 80 of all judges, black judges went to a historically black college. 40 of black engineers went to a historically black college. So hes been a champion his whole career for historically black colleges. There again, is a strong black voice. And his point is, i dont 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. 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 in 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 thhe equal protection clause permits consideration of race to achieve its goal. Where do you come down . Well, as a lower court judge, i always come down no matter the case with the majority every time cause we have to follow it. We are known as inferior courts. I dont mean that with any disrespect to any omy colleagues but thats 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. So an artful dodge which is compulsory, i think from your perspective. Yes. But do you recognize that there are these two robust arguments about the meaning of the 14th amendment . I think there are robust arguments but i also think theres precedent, right . There is brown v board of education. Theres also what the original meaning of the 14th amendment meant and i think its interesting about that. But one thing Justice Thomas says in grutter, 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 thats what he wants people to think about, i think, when he talks about these things. And when you say grutter, youre 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 58page concurring opinion. Given his personal connection to the sue and his long opposition to it, why do you think he wasnt given the job of writing it . I dont know the answer to that. Thats 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 wont get the answer. It strikes me that theres something very personal in terms of his own lived experience when it comes to the decision to overturn affirmative action. So let me ask you this, right . Youll read in the press that he himself benefited from affirmative action. How do we know that . So heres someone who grew up dirt poor in segregated georgia. I mean, im talking dirt poor. And then he goes to holy cross finishes ninth in his class at holy cross. At holy cross. How do we know that affirmative action, yet they prove his own theory that the stig is immediately attached to him. The only reason he is where he is many people say is because of the color of his skin. Well, but if you read his book, you can see that he resents that. Right and he thinks that happens to many young people and they dont deserve it. In other words, theres many black students who get to the colleges where theyre at through what he believes is a meritorious, the 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 cant leave is that if these schools would change their standards and get rid of legacy admissions and things like that then it would be far more meritorious across the board . It would be far more meritorious across the board. And that is all hes asking for. He calls them a cognoscenti, meaning the elites, and the elites he believes want legacy admissions cause they want their own kids to benefit. And in his mind, if you get rid of legacy admissions, you could achieve a similar, not racial balance cause asians would do much better i think, the statistics prove out but it would be at the expense of legacy people nott the expense of other minorities. So i mean, i just wanna 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 justices personal belief and lived experience factor into their decisions . I think when people say they dont, theyre being naive, they definitely factor in but it doesnt ever trump the original meaning for Justice Thomas. The original meaning is always gonna come first for him. And hes always gonna lay out the original meaning as he understands it. But then hes not gonna forget about the real people in the case and he is gonna respond when people that he disagrees with, justices he may disagree with, give their lived experience, hes gonna give his. So you said hes going to interpret the original meeting as he understands it. I think originalism then requires justices to have a Firm Understanding of history. It is a lot of work, i always joke to my clerks if i wasnt an originalist, they could go home at three cause i could tell em the answer but i cant tell em the answer, we gotta do the historical research. So there was this really interesting back and forth about the Freedmens Bureau in the affirmative action decisions. Justice thomas calls the Freedmens Bureau acts, which passed over the civil war, a formally raceneutral category because they also helped impoverished white refugees. Historians point out that throughout the period of the 14th amendment, when it was drafted and ratified, all sorts of race conscious fedel and state statutes were passed. So how do you respond to this critique that Justice Thomas is frankly cherrypicking history . Yeah, and i think you just evaluate, thats why you read the opinions. I think you aluate the weight of evidence on one side and the way, thats 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 its come is how much of that is now not only in the majorities but in the dissents. Yeah and its 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 doesnt apply to military academies. The court has come to rest on the bottomline 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 clauses name when it requires no such thing, and to thereby obstruct our collective progress towards the full realization of the clauses promise is truly a tragedy for us all. Whats your reaction . I would just say, i think Justice Jackson has an important point of view that people need to read her and Justice Thomas together. In other words, you cant 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 its better to read them together. And then the other point i come back to is the majority didnt, i think you can correct me if im wrong but i dont think the majority decided the military point. I think they dropped a footnote and specifically said thats not in front of us, we are not deciding it. They cant decide something that hasnt been briefed. So theyre not gonna decide this issue until it comes in front of them. 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 nations social problems. This discussion takes place in 1975 and the specific social issue being discussed here is busing but the broader discussion is still relevant today. Take a look. 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. But the Supreme Court is not a legislative body. I didnt 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 of a century that some problems are legislative and political in character, others are judicial. And im 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. Well, first of all, to try to define with simplicity the difference between legislative and judicial isnt really possible. Certainly i thought that that was the place where many of these things could be corrected and im beginning to have some question about the wisdom of the isolated judiciary irrigating to themselves so many of the social problems of our time. Today, there are issues like affirmative action, abortion, voting rights, president ial power, is it fair to say that congress has become so stuck against the backdrop of hyperpartisanship that there has been an overreliance on the court . So im not gonna weigh into the political issues but what i would say is i think its important that all of the government branches stay in their lanes. Why . That leaves the power in the American People. So theres certain things the constitution takes away that the government cant do, right . And that is what the constitution lays out, what Justice Scalia used to say is whats left. Hed rather have nine people randomly chosen from the phone book 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 arent in the constitution and they get to decide them through their elected representatives. Whether thats in washington, we always point to washington but we should remember theres also 50 state governments and one other government in the district of columbia. 51 other governments that can decide these things. You wrote the peoples justice and the peoples justice was published before the recent wave of articles about Justice Thomass Financial Disclosures and gifts d trips that were paid for by wealthy friends. What is your reaction to that reporting . What i would say is a couple things. One is that theres 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 isnt a person he hasnt met. It doesnt matter if youre his biggest critic. If he meets you, hes gonna be friendly and befriend you. In a recent New York Times oped, the federal judge, michael ponsor, wrote that the justices have failed to avoid quote, conduct with dubious aroma. He isnt just talking about Justice Thomas, he cites Justice Alitos travel, Justice Sotomayor using court staff to promote her books. And even Justice Ginsburg who didnt recuse herself from cases involving her husbands law firm. Would it be helpful if u. S. Supreme court followed the same formal ethical guidelines that are imposed upon you and the rest of the judges in this country . Thats up to them, i dont 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 theyve ruled inconsistent with their priors as a result of any of that and they havent. None of em have. Not Justice Ginsburg, not Justice Sotomayor, not Justice Thomas, not justice alito. Their rulings when you read them, you will understand why theyre ruling the way they are. And it has to do with the case or controversy in front of them. What they decide, the chief and justice kagan, i think have spoken about this and i would defer to them. Well, the justices may not ve done anything illegal, is the appearance of impropriety damaging to the court . I think the constant attacks on the institution dont help. I think its an amazing institution that is doing its job every day and no one can point to a case that was impacted in way by any of these things. But you can see that the appearance of impropriety rts the court . I definitely see that the appearance hurts and i think its important that we as judges and justices be more open about what goes on inside the institution. What do you mean by increasing the transparency about how the court works . That we talk about it. We work really hard to try and get cases right and thats true of everyone ive experienced in the court system. Whether i agree with em or disagree with em, theyre working their hardest and i think what goes on inside the courts is a really, in my experience, a very positive thing. There was an unprecedented leak at the Supreme Court in the dobbs decision. How did that impact you . It didnt, i mean, it hasnt happened it anywhere else that im aware of. But that sent massive tremors through the circuits for anybody who watches the court. It was a really disturbing event. Yeah, i think the breach of trust was disturbing but thats my point. It was disturbing because it happened because its so rare. Isnt that amazing . I mean, thats a great thing that its rare, that these breaches of trust rarely happen in our institution. What does it tell you that it did happen . It was unprecedented. I mean, are there things that need to be fixed at the highest court . Oh, i dont know, i havent studied it, im sure the chief is paying close attention and has taken into account what happened and has, it seems to me, rectified whatever went on. I feel like its not rectified cause there is an inconclusive determination about what happened. Well, but what i would say is it hasnt happened again and thats whats important, i think. I understand what youre saying and theyre trying to figure that out as far as i know or they havent figured it out. You were interviewed by President Trump for at least two vacancies on the supreme crt, maybe three. And youre likely to be considered by a future republican president for an opening on the court. What would you bring to the Supreme Court . Oh, im happy where im at. I think its important that people enjoy what theyre doing and not worry about the next step. And i love what i do, so im not gonna worry about that. I dont know, you know theres a lot of amazingly qualified people that they can pick and i dont know that i am on that list and so, id leave that. What was it like to be interviewed by President Trump . You know, for a kid whos a 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 president s. 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, its an amazing honor. Justice thomas is the longest serving associate justice with the Supreme Court. Hes served almost 32 years. He will be retiring at some point. Youve just written a book about it. Does this book make you a logical candidate to be his successor . No, and i dont 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 hes gonna continue to do that. Judge amul thapar, thank you for joining me here on firing line and thank you for sharing the peoples justice with us. Thank you for having me. [bright upbeat music] [announcer] 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. Schb and by the rosalyn p. Walter foundation and damon button. [bright upbeat music] [bright upbeat music] [logo chiming] [announcer] youre watching pbs. Hello, everyone, and welcome to amanpour company. Heres whats coming up. With african heads of state gathered in russia, we look at putins strengthening alliances and what it might mean for the war. Plus russia attempts to break peoples resistance. Ukraine conties to suffer the horrors of that war. My conversation with those fighting for accountability. The nobel peace laureates. And we at this moment have an even more important job to do to be vigorously enforcing the antitrust laws, protecting fair competition, preserving open markets. A new approach to corporate mergers, Walter Isaacson explores new rules which aim to present harm to workers
comparemela.com © 2020. All Rights Reserved.