By Lia-Michelle Keane '18
Features Editor Emeritus
In the past month, students at UVa Law have had the opportunity to hear remarks from several esteemed members of the judiciary. At the end of February, Judge Amul Thapar, a Judge on the United States Court of Appeals for the Sixth Circuit, visited the Law School to share his thoughts on textualism and to critique former Seventh Circuit Judge Richard Posner’s recent book, The Federal Judiciary: Strengths and Weaknesses. Additionally, nearly thirty students, including myself, made a trip to Washington, D.C., over spring break to listen to United States Supreme Court Justice Clarence Thomas speak at the Federalist Society’s 2018 National Student Symposium.
Judge Amul Thapar
Judge Thapar’s event began with his admitting that, despite their different judicial philosophies, he agreed with several of the propositions in Judge Posner’s book. For instance, Judge Thapar stated that Judge Posner was correct to criticize the untimeliness of opinions issued by courts because, in his view “justice delayed is justice denied.” Further, Judge Thapar and Judge Posner agree that brevity in opinions is an essential component in efficiency, particularly at the circuit court level. Judge Thapar suggested that overly dense opinions increase the likelihood of lower courts misinterpreting the meaning of the law and that judges should focus on emphasizing a clear holding.
Turning to where he and Judge Posner disagree, Judge Thapar stated that Judge Posner’s viewpoint advances pragmatism over formalism, which he fears may lead judges to decide cases based on what he termed the imaginary “Emotions Clause” of the Constitution rather than the text itself. Judge Posner’s book also argues that judges should look to the future rather than precedent in order to reach the best outcome in pending cases. Judge Thapar criticized this because doing so would likely have a negative impact on lower court judges. In Judge Thapar’s opinion, backward-looking interpretations increase overall efficiency because members of society can rely on precedent to predict the legality of their actions. This reliance, in turn, decreases the need of parties to litigate disputes because they can better guess the outcome in advance. Moreover, Judge Thapar expressed concern that a pragmatic approach in the judiciary branch would elevate judges to the position of “co-legislator.” The problem with this, according to Judge Thapar, is that, “at no point in time have judges been infallible,” and taking policy decisions away from politically accountable members of the legislative branch could result in unpopular and unwanted decisions becoming law.
In his concluding comments, Judge Thapar stated that he agrees with former Supreme Court Justice Scalia’s view that liberties are best protected by following the separation of powers, and that the different branches should “stay in their lanes.” He acknowledged that “textualism is hard,” but argued that it is not the responsibility of the judiciary to amend poor legislative drafting, even if judges would personally prefer a different outcome than what is required by a statute’s text. According to Judge Thapar, when courts apply a consistent interpretation of the law, it pressures Congress to pay more attention to how they write.
For those interested in learning more about Judge Thapar’s judicial philosophy, he regularly co-teaches a popular J-Term with UVa’s David and Mary Harrison Distinguished Professor of Law Emeritus Lillian BeVier, which he hopes students—whether they are formalists or not—will take before graduating.
Justice Clarence Thomas
Justice Clarence Thomas’ event spanned a vast spectrum of topics, including his approach to judging and issues related to race. Much like Judge Thapar, Justice Thomas’ remarks at the Federalist Society’s Student Symposium included praise of Justice Scalia, though his comments emphasized the close personal relationship he developed with his former colleague over the years. Although he joked that Justice Scalia had once been unhappy about the popular criticism that he was viewed as Justice Thomas’ “boss” on the Court, according to Justice Thomas, from the moment he took his place on the bench, there was a trust between the two men. “Unlike much of society,” Justice Thomas said, “[Justice Scalia] never had an image of me [that] I was to live up to. He never had a stereotype, like much of what you see in the media, or the country now—they have an image of what I’m supposed to be, and if I deviate from that, something’s wrong with me [. . .] He never did.” Justice Thomas went on to say that even when he disagreed with Justice Scalia in an opinion, their friendship never wavered and he misses Justice Scalia’s presence on the Court “a lot.”
Despite typically aligning with Justice Scalia’s judicial philosophy, Justice Thomas stated that there is no reason why collegiality cannot exist between justices with different viewpoints. He said that, ultimately, what matters is that justices decide cases based on their commitment to what they believe is the correct method of judicial interpretation. He said that, even when his interpretation of the law results in his ending up in the minority of a decision, he prefers that outcome to deviating from his principles. In his words, “Why do the job if you can’t do it in an honorable way?”
When the moderator noted the uniqueness of Justice Thomas’ clerks often coming from law schools outside the T14, Justice Thomas replied that he is interested in working with people from a wide variety of backgrounds and that there are many bright students outside the Ivy League. Notably, he currently has no clerks from an Ivy League law school, and he said that he particularly enjoys hiring students who come from “modest backgrounds,” as well as from different regions, because they tend to have different perspectives on the issues that come before the Court. He also encouraged students to look beyond “faux diversity,” which he described as an overemphasis on immutable characteristics, and to instead engage with people who hold differing intellectual ideas and interests.
Finally, Justice Thomas offered insight into his personal life. He spoke about his wife with great esteem and described the fun they have on the cross-country trips that they take in their motorhome. He also noted the importance of his faith and his reliance upon it during tough times. Throughout the event, it became apparent that Justice Thomas’ reputation for having a great sense of humor is wholly justified, and it was a tremendous privilege to hear him share his thoughts.