Federal judge delivers lecture, co-teaches course on affirmative action

The Center for Citizenship and Constitutional Government, the Notre Dame Law School, and the Program on Constitutional Structure co-sponsored a lecture titled “The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him,” as part of a Napa Institute Forum on August 29.

Judge Amul Roger Thapur, the featured speaker, was appointed by President Donald J. Trump to serve on the United States Court of Appeals for the Sixth Circuit in 2017. Thapar was also speculated to have made President Trump’s shortlist to fill the Supreme Court seat of Anthony Kennedy in 2018.

Speaking to a full room in the law school, Thapar described three of Justice Clarence Thomas’ key qualities: his pure originalism, his intense care for the people around him, and his strong black voice. While Justice Thomas has often been portrayed as someone who favors the strong over the weak due to his originalist philosophy, Thapar argues that “the opposite is true. And the cases in the book prove it.”

In his defense of originalism, Thapar quoted the late Justice Antonin Scalia, stating that judges and lawyers “have an obligation to fly the flag of originalism.” Though Thomas is “first and foremost an originalist,” Thapar points out that “he cares a lot about people, and that is often lost.” The justice’s concern for the livelihoods of ordinary Americans inspired the title of Thapar’s new book, The People’s Justice.

Thapar covered three of the book’s twelve cases in the lecture: Kelo v. City of New London (1978), Mckee v. Cosby (2019), and City of Chicago v. Morales (1999).

In Kelo v. City of New London, the plaintiff was a mother of five and paramedic who wanted to retire in New London, Connecticut with a water view. She bought a run-down house in a blue-collar neighborhood and renovated it over time, painting it pink and building a sign labeled, “The Kelo House.”

The city of New London wanted to redevelop a waterfront piece of property into a Pfizer research and development facility, so they invoked the doctrine of eminent domain to take possession of Kelo’s nearby house. In a 5-4 decision, the Supreme Court ruled against Susette Kelo and expanded the Fifth Amendment’s language of “public use” to include “public purpose.”

In his dissenting opinion, Thomas was the only justice to argue in favor of returning to the original language of the Constitution. Thapar pointed out that Thomas’ return to the language of ‘public use’ would limit the government’s ability to evoke eminent domain, which disadvantages minorities and the poor.

In the two latter cases, McKee v. Cosby and City of Chicago v. Morales, Thapar argues that Thomas’ jurisprudence continues to highlight how he seeks to defend the disadvantaged. Further reflecting on how Thomas’ strong stance on originalism is compatible with his care for the poor, Thapar concluded that Thomas’ originalism “favors the document, the document reflects the will, those words have meaning and consequence, and it often protects the ordinary citizen and the little person.”

Last year, Thapar had the unique opportunity to teach a one-credit course alongside Professor Vincent Muñoz titled “Church, State, and the Supreme Court.” Thapar and Muñoz are teaching together again this fall with their “Race and the American Constitution” course.

The class covers a series of prominent Supreme Court race-related decisions leading up to the recently decided Students for Fair Admissions v. Harvard (2023) case. The Supreme Court issued a 6-2 ruling that the race-based admissions policies adopted by Harvard University and the University of North Carolina at Chapel Hill were unconstitutional.

Senior Merlot Fogarty is one of the fifteen students currently enrolled in the course. She told the Rover, “Having Judge Thapar on campus so soon after the decision was released allowed us to have conversations about the tangible effects on admissions,” specifically about the future of the admissions process at Notre Dame.

Though the Supreme Court has ruled on affirmative action, many challenges remain for the university admissions process. Fogarty acknowledged that this course gave her hope for the future: “This is a controversial topic that university administrators don’t want to acknowledge, but if 15 students and a federal judge were able to deliberate the fruits and repercussions of racial discrimination in admissions, then our university administrators should be able to as well.”

Jose Rodriguez is a senior from West Palm Beach, Florida majoring in computer science with minors in theology and constitutional studies. When he’s not selling pizza for $1 a slice in the depths of Keenan Hall’s Zaland, you can reach out to him at jrodri27@nd.edu.

Photo Credit:  Center for Citizenship and Constitutional Government

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