The Sixth Circuit Court of Appeals features as many as three “short-listers” to replace the retiring Justice Anthony Kennedy on the US Supreme Court: Judges Raymond Kethledge and Joan Larsen of Michigan, and Judge Amul Thapar of Kentucky. All three reportedly interviewed with President Trump last week, and all three are young and prominent enough to be considered for future vacancies that might develop.
The Yale Journal on Regulation’s blog has published an in-depth series of posts focused on the administrative-law jurisprudence of the perceived front-runners. And new Squire Patton Boggs litigation partner wrote the analysis of Judge Thapar. (Judge Thapar recently published an article in the Michigan Law Review on textualism in response to a book by Judge Richard Posner on legal pragmatism.)
It’s quite clear what Judge Thapar would uniquely add to the Roberts Court: practical trial-court experience, a compelling immigrant success story, and representation of non-Ivy schools and Rust Belt states. He would also build on the textualist approach embraced by Justices Thomas and Gorsuch—one that in recent years has had important and fresh implications for administrative practice. If every new Justice makes a new Court, this one would add a perspective on textualism in the trenches with (in my view) rather clear effects on the Court’s deference case law in particular: less invocation of multilayered deference doctrines, greater attention to the soundness of agency reasoning and interpretation, and—above all—a persistent focus on the statutory text Congress enacted.
Regardless of who gets this Supreme Court nod, lawyers interested in the Supreme Court and Sixth Circuit should check out the full analysis of Judge Thapar’s approach (and the features on Judges Kethledge—in two parts—and Larsen too). For additional background, see our prior posts on these judges: here, here, and here.