American Family Association Action (AFA Action), is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association (AFA).
Judge on the U.S. Court of Appeals for the Sixth Circuit
This prospect is designated as a red list candidate. The purpose of the “red list” designation is not to denigrate a prospect but rather to explain that serious concerns make them untenable given the availability of “green list” prospects that do meet the exceedingly high standard necessary for Supreme Court prospects.
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Thapar’s parents are both Indian immigrants, but Thapar was born in Detroit.[1] Thapar grew up in Toledo, OH with his maternal grandfather, who fought for India’s independence alongside Mahatma Gandhi. Thapar’s grandfather taught Thapar about how Gandhi defeated an empire without using physical violence.[2]
Thapar’s father encouraged Thapar to become a physician, but Thapar’s dream was to become a Supreme Court justice.[3]
Thapar was a Hindu when clerking for Judge Nathaniel Jones but was not practicing.[4] Judge Jones’s judicial assistant Marsha Carter introduced Thapar to Christianity. Thapar considered himself a non-denominational Christian when he married his wife. Thapar stated, “And she gave me something that remains on my desk today and it was a little plaque and it’s Jeremiah 17:7 in it, ‘But blessed are those who trust in the Lord and have made the Lord their hope and confidence.’ And that plaque had so much meaning to me when I left the clerkship because of how much time she spent with me talking about the importance of Jesus Christ in the Bible and other such things. Another one of my co-clerks turned me on to an Indian preacher of all people, named Ravi Zacharias and I started listening to him. And through that journey, I came to Christianity and I became a non-denominational Christian. During this time, I also met my wife and she was Catholic. And so we got married, I refused to convert to get married because I was still struggling with Catholicism.”[5]
Thapar later converted to Catholicism. He said, “Well, we had our first child and she got pregnant with her second and she informed me that on Sundays her and the kids would go to Catholic church, they would take Catholic communion. And I could either be a part of this family or I could explain to the kids why I don’t want to be a part of the family. So I went through RCIA, as you can imagine, someone that didn’t believe in many of the tenets of the Catholic faith, challenged everything in RCIA, drove everyone in my class crazy and hopefully we all became better Catholics as a result of it. But that was my journey to Catholicism. It’s really that I got there because of my wife. And of course, my faith in judging starts with my wife as well.”[6]
Thapar has described the impact of his faith on his judging. He explained, “[T]o the extent someone asked, “Has your faith impacted your judging?” Absolutely. It gave me the freedom to understand that when I was putting people in jail, I wasn’t doing it because they were bad people, I was doing it because they committed bad acts and those acts had consequences by our law. And so that’s my story on faith and judging, especially on the district court level.”[7]
Thapar has belonged to St. Pius X Catholic Church since 2001.[8] He has been a member of the South Asian Bar Association of North America and belonged to its National Advisory Committee since 2008.[9] Thapar was a Board Member for Catholic Charities in the Diocese of Covington from 2010 to 2013. [10] Thapar has been a mock trial coach for Covington Catholic High School in Kentucky since 2015. [11] Judge Thapar was the first South Asian Article III judge.[12] Thapar is married to Kim Shulte Thapar, and they have three children.[13]
[1] Andrew Wolfson, Meet the Kentuckian on Trump's short list for Supreme Court justice, Courier Journal (June 28, 2018), https://www.courier-journal.com/story/news/local/2018/06/28/meet-trump-supreme-court-nominee-amul-thapar/742481002/.
[2] Andrew Wolfson, Meet the Kentuckian on Trump's short list for Supreme Court justice, Courier Journal (June 28, 2018), https://www.courier-journal.com/story/news/local/2018/06/28/meet-trump-supreme-court-nominee-amul-thapar/742481002/.
[3] Andrew Wolfson, Meet the Kentuckian on Trump's short list for Supreme Court justice, Courier Journal (June 28, 2018), https://www.courier-journal.com/story/news/local/2018/06/28/meet-trump-supreme-court-nominee-amul-thapar/742481002/.
[4] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 6:52.
[5] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 7:41.
[6] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 8:45.
[7] Originalism and the Catholic Intellectual Tradition: A Jurist's Perspective, YouTube (Oct. 14, 2022), https://www.youtube.com/watch?v=8oKHF1StpVA at 11:49.
[8] S. Questionnaire, p. 9. Link here.
[9] S. Questionnaire, p. 4. Link here.
[10] S. Questionnaire, p. 8. Link here.
[11] S. Questionnaire, p. 4. Link here.
[12] Faculty: Amul R. Thapar, Univ. of Virginia, https://www.law.virginia.edu/faculty/adjunct-profile/art2y/2320134.
[13] Judge Amul Thapar, The Presidential Prayer Team (Apr. 8, 2021), https://www.presidentialprayerteam.org/2021/04/08/judge-amul-thapar-sixth-circuit-u-s-district-court/.
Thapar has expressed an expansive view on the role of the judiciary. He was asked at his confirmation hearing about his views on “judicial independence,” and stated, “While we [judges] do at appropriate times give deference to Congress or the agencies or the executive branch, it’s important – and as Chief Justice Marshall and others have said for us – that we get to say at the end of the day what the law is.”[14] He has also stated opposition to some forms of judicial activism, even while seeming committed to judicial supremacy. Thapar has said, “[W]hen words do not appear in a statute, we should not add to what Congress has provided with what we think Congress should have provided."[15] Thapar has argued that the courts should add corpus linguistics (the study of the meaning of words and language as stored in real life situations such as internet search engines) to their toolbelt. Thapar wrote, “[T]he text is clear, as many tried-and-true tools of interpretation confirm. But so does one more: corpus linguistics. Courts should consider adding this tool to their belts.”[16] Judge Thapar struck down a Kentucky statute forbidding judges from making political contributions.[17]
[14] Hearing to Consider Pending Nominations, https://www.judiciary.senate.gov/hearings/watch?hearingid=523B537C-5056-A066-6068-8550B2E199BD at 47:30 (bold and emphasis added).
[15] Tree of Life Christian Schools v. City of Upper Arlington, 905 F.3d 357 (6th Cir. 2018). Link here, PDF p. 33 (bold and emphasis added).
[16] Wilson v. Safelite Grp., Inc., 930 F.3d 429 (6th Cir. 2019). Link here, PDF p. 13.
[17] Winter v. Wolnitzek, 186 F. Supp. 3d 673 (E.D. Ky. 2016). Link here (bold and emphasis added).
Judge Thapar issued a permanent injunction prohibiting “stand-alone Ten Commandments displays” at a county courthouse and approved $6,000 in attorney’s fees awarded to the plaintiffs.[18] Judge Thapar joined a Sixth Circuit opinion upholding commissioner-led invocations at meetings of the Board of Commissioners.The opinion focused on the historical and traditional role of legislative prayer, citing Marsh: “‘The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.’ [citations omitted].”[19] Judge Thapar also joined a per curiam opinion denying a Jehovah’s Witness’s Title VII failure to accommodate claim because accommodation would pose more than a de minimis burden on the employer, but dissented with a critique of Hardison. He wrote, “Of course, all this does not mean that employers must always accommodate their employees’ religious beliefs and practices. The term ‘undue hardship’ makes clear ‘that this is a field of degrees, not a matter for extremes’ or ‘absolutes.’…But Hardison itself adopted an ‘absolute’ when it ‘effectively nullifi[ed]’ the accommodation requirement. Hardison, 432 U.S. at 89 (Marshall, J., dissenting). And without any real reason.”[20]
[18] ACLU of Ky. v. Cty. of Jackson, No. 09-230-ART (E.D. Ky. 2009). See ACLU of Ky. & Philips v. City of Jackson, ACLU, https://www.aclu-ky.org/en/cases/aclu-kentucky-and-phillips-v-jackson-county-2009. See also Peter Smith, “County to pay ACLU for court fight over Ten Commandments,” The Courier Journal (Louisville, Ky.) (Aug. 4, 2009), 2009 WLNR 15629094 (page unavailable online).
[19] Bormuth v. Cty. Of Jackson, 870 F.3d 494 (6th Cir. 2017) cert. denied, 138 S. Ct. 2708 (2018). Link here (bold and emphasis added).
[20] Small v. Memphis Light, Gas & Water, 952 F.3d 821 (6th Cir. 2020). Link here, PDF p. 11 (bold and emphasis added).
Thapar joined an opinion rejecting a prisoner’s §1983 claim concerning the free exercise of his religion because the single instance of a prison official pouring out the prisoner’s prayer oil was not sufficient to sustain a free exercise claim.The opinion read: “[I]solated incidents are not sufficient to sustain a free exercise claim.”[21] Thapar authored an opinion granting qualified immunity to prison officials who removed a string from a Native American inmate’s prayer feather due to security risk.[22] Thapar also wrote an opinion rejecting a Native American prisoner’s request for access to a sweat lodge due to penological interests.[23] Lastly, Thapar joined a decision denying an alien’s petition for removal because she failed to corroborate her status as a Falun Gong practitioner. [24]
[21] Young v. Hooks, 2018 U.S. App. LEXIS 25324, *1, 2 (6th Cir. 2018). Link here (bold and emphasis added).
[22] Romero v. Lappin, No. 10-35-ART, 2011 U.S. Dist. LEXIS 86435, *1, 11 (E.D. Ky. 2011). Link here.
[23] Bailey v. Isaac, 2012 U.S. Dist. LEXIS 136037, *1, 6 (E.D. Ky. 2012). Link here.
[24] Qiao Zhen Jiang v. Holder, 341 Fed. Appx. 126 (6th Cir. 2009). Link here, PDF p. 3.
Thapar dissented from a panel opinion affirming a preliminary injunction against a COVID-19 restriction on elective surgeries as it applies to abortion. Thapar wrote, “The district court failed to make specific findings about whether the executive order creates a ‘substantial obstacle’ for women seeking an abortion. See Casey, 505 U.S. at 874. At most, the district court pointed out that the executive order will delay certain abortions for three weeks. But that doesn't take the plaintiffs very far. Both the Supreme Court and our court have upheld laws that have the effect of delaying abortions for days or even weeks. See, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514, 110 S. Ct. 2972, 111 L. Ed. 2d 405 (1990) (up to three-week delay); Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361, 366, 372-74 (6th Cir. 2006) (up to two-week delay). Indeed, for the last forty years, the Supreme Court has "repeatedly upheld a wide variety of abortion regulations that entail some delay in the abortion." Garza v. Hargan, 874 F.3d 735, 755-56, 433 U.S. App. D.C. 72 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting) (collecting cases). The district court failed to grapple with any of these precedents. Its silence speaks volumes.”[25] Thapar also held that the Court lacks authority to instruct the Department of Justice when to seek or not seek the death penalty because that would violate the separation of powers.[26]
[25] Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020). Link here, PDF p. 25 (bold and emphasis added).
[26] United States v. Slone, 969 F. Supp. 2d 830, 833-34 (E.D. Ky. 2013). Link here.
Thapar authored an opinion in which he adopted the preferred pronouns of a transgender litigant when discussing relevant case law. He wrote of Traci Greene, a biological male who identified as a male-to-female transgender person: “The prisoner, Traci Greene, was a preoperative transsexual who was placed in the prison's protective custody unit (‘PCU’) for her safety.” [27] Additionally, Thapar, sitting by designation, has denied a claim for same-sex employment harassment. He wrote: “Harold Wasek claims that he was harassed and bullied while working for his employer, Arrow Energy Services, Inc. He cannot show, however, that the bullying and harassment occurred because of his gender. As such, Wasek cannot maintain an action under either Title VII or Michigan's Elliot-Larsen Civil Rights Act ("ELCRA").”[28]
[27] Holder v. Saunders, No. 13-38-ART, 2014 U.S. Dist. LEXIS 174592, *1, 17-18 (E.D. Ky. 2014). Link here (bold and emphasis added).
[28] Wasek v. Arrow Energy Services, Inc., 682 F.3d 463, 465 (6th Cir. 2012). Link here.
No information has been located on this topic.
Thapar has commented on the lack of viewpoint diversity at law schools. He moderated a Federalist Society Debate, at the conclusion of which he made the following comment: “I want to first say ‘what a great debate.’ You have to come to the Federalist Society Symposium to get this debate, and the reason is we don’t have diversity of viewpoint in our law schools.”[29]
[29] Debate on Immigration Restrictions and the Constitution, The Federalist Society (Feb. 26, 2016), http://www.fed-soc.org/multimedia/detail/immigration-restrictions-and-the-constitution-event-audiovideo at 1:16:45.
Thapar authored a panel opinion rejecting a prisoner’s sentencing challenges under governing precedent but concurred to express concern about Auer deference and separation of powers issues. Thapar wrote in concurrence: “Under Auer, courts must defer to agencies' interpretations of their own rules—including the Commission's interpretation of the Guidelines…But one does not ‘interpret’ a text by adding to it. Interpreting a menu of ‘hot dogs, hamburgers, and bratwursts’ to include pizza is nonsense. Nevertheless, that is effectively what the government argues here when it says that we must apply deference to a comment adding to rather than interpreting the Guidelines.”[30] He continued: “The government's argument shows how far Auer has come and will go if left unchecked by the courts. Under Auer, agencies possess immense power. Rather than simply enacting rules with the force of law, agencies get to decide what those rules mean, too. But just as a pitcher cannot call his own balls and strikes, an agency cannot trespass upon the court's province to ‘say what the law is.’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).”[31] Judge Thapar has discussed the implications to the separation of powers of insulating agencies from judicial review and questioned applying Auer deference to effectively prevent a plaintiff from being able to appeal an ALJ determination. Thapar wrote, “The three branches of government are supposed to check and balance one another. Congress can check the judiciary by limiting federal jurisdiction…Since it can limit federal jurisdiction, Congress sometimes rebuts that presumption and limits judicial review of agency conduct. See, e.g., Heckler v. Chaney, 470 U.S. 821, 830, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985). But that is very different from ‘permitting the agency to insulate its own decisions from judicial review,’ something the Supreme Court has ‘soundly rejected’ under other statutes. Gor v. Holder, 607 F.3d 180, 188 (6th Cir. 2010) (discussing Kucana v. Holder, 558 U.S. 233, 130 S. Ct. 827, 175 L. Ed. 2d 694 (2010)).”[32] Thapar continued, “As usual, Madison said it best: ‘The accumulation of all powers, legislative, executive, and judiciary in the same hands . . . [is] the very definition of tyranny.’ The Federalist No. 47, at 298 (James Madison).”[33] The above positions are correct; however, Thapar seems less concerned with preventing the accumulation of power within the judiciary.
[30] United States v. Havis, 907 F.3d 439 (6th Cir. 2018). Link here, PDF p. 15 (bold and emphasis added).
[31] United States v. Havis, 907 F.3d 439 (6th Cir. 2018). Link here, PDF p. 15-16 (bold and emphasis added).
[32] M.L. Johnson Family Properties, LLC v. Jewell, 237 F.Supp.3d 528, 544 (E.D. Ky. 2017). Link here (bold and emphasis added).
[33] M.L. Johnson Family Properties, LLC v. Jewell, 237 F.Supp.3d 528, 544-45 (E.D. Ky. 2017). Link here (bold and emphasis added).
Judge Thapar has been an adjunct professor at the University of Virginia School of Law since 2013.[34] Thapar is currently a member of the National Advisory Council of the South Asian Bar Association of North America.[35] Thapar was a member of The Federalist Society from 2005 – 2008.[36] He has worked on political campaigns for Geoff David for U.S. Congress, Governor Ernie Fletcher, Secretary of State Trey Grayson, President Bush, and U.S. Senator Jim Bunning.[37] He also taught several law school classes on judicial philosophy.[38] Thapar said at his Senate confirmation hearing that Judge Nathaniel Jones, whom Thapar clerked for on the Sixth Circuit, was his “judicial mentor.”[39] Thapar has also described Judge Denny Chin as “[a] true role model.”[40] Lastly, he has described Judge Sri Srinivasan, an Obama judicial nominee, as someone he would like to see on the Supreme Court.[41]
[34] S. Questionnaire, p. 2. Link here.
[35] S. Questionnaire, p. 4. Link here.
[36] S. Questionnaire, p. 9. Link here.
[37] S. Questionnaire, p. 71-72. Link here.
[38] S. Questionnaire, p. 84-85. Link here.
[39] Hearing to Consider Pending Nominations, Amul Thapar, https://www.judiciary.senate.gov/hearings/watch?hearingid=523B537C-5056-A066-6068-8550B2E199BD at 43:40.
[40] John C. Yang, “A Shining Star in an Often Overlooked Galaxy: The Honorable Amul R. Thapar (E.D. Ky.),” XVIII NAPABA Lawyer No. 3, available at https://cdn.ymaws.com/www.napaba.org/resource/resmgr/Newsletters/election_2008.pdf (2008).
[41] “2013 NAPABA Gala – Judge Sri Srinivasan,” National Asian Pacific American Bar Association, at 1:00, available at https://youtu.be/0p4uht4pWko (Jan. 24, 2014).
Thapar properly cited to Jacobson in dissent, indicating that sometimes government action in response to an emergency will justifiably impact personal liberty interests. Thapar dissented from a majority opinion to modify a COVID ban on all elective medical procedures to allow abortions. To be clear, Thapar would not have allowed abortions as an exception to the COVID ban. Thapar wrote, “In Tennessee, as in so many other states, the Governor has taken extraordinary steps to fight the pandemic. He declared a state of emergency, required all residents to remain at home except in limited circumstances, and ordered the closure of most businesses. As part of that effort, he also signed the generally applicable order at issue here. …Our law has long-protected just these types of decisions from judicial interference based on purported violations of substantive due process. In times of emergency, elected officials need room to do what they were elected to do—to govern. Sometimes their actions will incidentally impact a person's liberty interests. But the Supreme Court has upheld such actions anyway, explaining that ‘[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [person or property], . . . regardless of the injury that may be done to others.’”[42] He continued, “Of course, this does not mean that the courts should rubber stamp emergency measures—far from it. See Jacobson, 197 U.S. at 28-29. But it does mean that judges should act with care during such times, recognizing the limits of our knowledge, institutional capacity, and lawful authority.”[43] He added, “Just contrast this case with the facts of Jacobson, where the Supreme Court upheld a state's authority to forcibly vaccinate individuals. If the State can physically invade a person's body in response to an emergency, then it surely may require people to delay certain medical procedures for the same purpose.”[44]
[42] Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 933-34 (6th Cir. 2020). Link here, PDF p. 27-28 (bold and emphasis added).
[43] Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 934 (6th Cir. 2020). Link here, PDF p. 28 (bold and emphasis added).
[44] Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 934 (6th Cir. 2020). Link here, PDF p. 29 (bold and emphasis added).
Best meets the ten principles of a constitutional judge.
Rating: GreyNeutral. Record is not as fully developed. Cannot be rated as “green” or “red.”
Rating: RedFails to meet the ten principles of a constitutional judge.
AFA Action is a non-profit 501(c)(4) organization dedicated to advancing biblical, family values in society and government by educating and influencing public policy. AFA Action is also the Governmental Affairs Affiliate of American Family Association.