In an interview with NR, the justice weighs in on the emergency docket, explains why she doesn’t like ‘common good constitutionalism,’ and talks about her new book.
O n Wednesday morning, the Supreme Court ruled in Trump v. Cook that Lisa Cook could stay on the Federal Reserve Board of Governors until the Court hears argument on Donald Trump’s effort to remove her. That afternoon, I sat down with Justice Amy Coney Barrett in her chambers to discuss her new book, Listening to the Law: Reflections on the Court and the Constitution.
We sat in Justice Barrett’s office, where she was perched on the couch that (as she describes in the book) belonged to Chief Justice Charles Evans Hughes in the 1930s. The atmosphere outside was subdued. Security is more visible at the Court these days, and the building’s famous façade is covered for construction work. Across the street, the Capitol Visitor Center and the Library of Congress were closed for the first day of the government shutdown, which a sign at the Capitol euphemized as “a lapse in appropriations.” The Court, while still open for its work, won’t start buzzing until the term’s first arguments begin next week.
What follows, edited slightly for print, is the first half of my conversation with her. We’ll publish the second half over the weekend.
NR: So I have to say, as a child of the ’70s, it’s a little weird to me to be interviewing a Supreme Court justice who’s younger than I am.
JUSTICE BARRETT: [Laughs]
NR: And there’s a serious question behind that, actually. We have now four Gen X justices, [the others being] Justices Gorsuch, Kavanaugh, and Jackson. Our generation is actually the first generation to have come of age as lawyers with Scalia opinions, the Federalist Society, and originalism and textualism as serious arguments in the law schools. I had Justice Scalia come to one of my classes once, and debate one of our professors. So, we came of age with that — do you see any difference in the perspective of the four younger justices?
JUSTICE BARRETT: Well, I can only speak for myself, but I think, I guess the difference between when I was in law school and now, in the law just generally, is that originalism has gone from the kind of theory that was often in dissent to now it is a theory held by a majority of justices on the Court. And so, I think when I was a law student and when I was a young lawyer, and frankly, even when I was first a law professor, and I was thinking about originalism, it was a way of critiquing a lot of decisions. But if you’re building up, you know, if you’re employing it from a position of, hey, this isn’t in the dissent, and this isn’t a critique, I think it’s just a little bit of a different thing. And so I think that now we’re at a point where it’s probably third-generation originalism.
If you think of first generation as Bork and original intent, and then second generation as Scalia and original public meaning. And I think now it’s third generation originalism. I guess I would say, I’m using that to describe debates about, what do you do when the original meaning is evident but not determinative of the meaning? This is, I think, the history and tradition debate that’s going on.
I guess I will add one other thing. I think that when originalism in its early iterations, certainly in the first generation and somewhat in the second generation, was very focused on judicial restraint. And that was in part because it was criticizing a method of interpretation that felt a little bit more like the Wild West or more results-oriented. And I think that — this was evident in Justice Scalia’s work, as he went on — it’s really not a theory of restraint, even though it’s a side benefit that if you consider yourself bound by the text, you have an external constraint operating on you. But it’s really a theory of law. And I think that’s how Justice Scalia regarded it.
But I do think that language of “you should be an originalist, because otherwise you might be a runaway judge,” has never really kind of fully gone out of dialogue around originalism.
NR: We’re now in a position where there are critics of originalism from the right — people who say: It’s too legally positivist. It doesn’t consider enough of the common good to achieve everything that the right wants to do. How do you think about or respond to those kind of critiques?
JUSTICE BARRETT: I don’t like this common good constitutionalism movement.
It feels to me like it’s just results-oriented, and I think that it has all of the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s. I resist the idea that originalism wasn’t around until Scalia, that originalism wasn’t around until the ’80s, because if you go back and look even at [John] Marshall opinions, and go back to the Founding they were looking at, you know, what did the Framers intend? They might not have always used the language of meaning rather than intent, but originalism, Keith Whittington talks about this. I mean, originalism was always a part of the Court’s jurisprudence. But just like that little caveat, I just think that common good constitutionalism is just kind of results-oriented jurisprudence from the right.
NR: Yeah, I like to cite Washington’s Farewell Address and its warning against departing from the Constitution.
JUSTICE BARRETT: Yeah.
NR: It’s an early example.
Justice Thomas was the only one of the justices who was on the Court already when you clerked. How many of the others had you actually met before?
JUSTICE BARRETT: Well, when I first came onto the Court, Justice Breyer was here, and he also had been on the Court when I clerked. So it had only been Justices Thomas and Justice Breyer who were here when I clerked. I had met most of the other justices before, you know, either in my capacity as a law professor or just once I was a judge. So I think I had met pretty much everyone.
NR: Washington asked Chief Justice Jay and his colleagues to go out when they first were riding circuit — they gave speeches to grand juries extolling the virtues and explaining the new Constitution. Chief Justice Burger quit the Court, retired from the Court, to go run the Constitution’s bicentennial. In writing this book and in giving public talks, do you see that as part of your job to be a public-facing ambassador?
JUSTICE BARRETT: I don’t know that I would go so far to say I think it’s part of my job. But even in descriptions of ethics, what judges are encouraged to do — teaching is among those things. And so certainly, when groups come through the Court and I talk to them, or, I still teach, or I give lectures at law schools, I do think that it is helpful for justices, just like it’s helpful for federal judges and courts of appeals and district courts to be an ambassador for the judiciary and to explain and to be kind of a point of contact between the public and the courts about the Constitution and what it is that courts do. So that is definitely part of what — that was a big motivation for the book.
Really, I feel like the public doesn’t understand, as much as I wish it could, exactly how the Court works.
NR: There’s a lot of history in the book. Where did briefs come from? Where did the black robes come from? Where did the law clerks come from? When did these things happen? Did you have any sort of “Wow” moments researching the things that you didn’t know, that you’re like, “Oh, I wasn’t aware of this.” Or was this all, you were already versed in it all.
JUSTICE BARRETT: I didn’t know some of the things about oral argument. I hadn’t heard some of the stories about lawyers going up [to the bench] to take the tobacco or spit in the spittoons. We have spittoons behind the bench, still just as a relic of the past. No one actually is chewing tobacco. You know, I could use them for as a garbage can. But some of those, some of those things about oral argument I was not aware of. So that was fun to research when I did that. In terms of other “Aha!” moments, I knew about the robes, I don’t think I realized that there really were no briefs required until the late 19th century. I hadn’t really thought about that before when I started reading up.
NR: Yeah, that came as a bit of a surprise even to me. And I’ve read a lot of history of the Court, but there’s still a lot in there I didn’t know.
Of course, one of the hot issues, literally a hot issue this morning even [with the Trump v. Cook decision], is the emergency docket. And there’s been a lot of criticism, even criticism from district judges — criticism from public sources, saying the Court’s doing these things, not explaining them, even district judges saying, “How are we supposed to follow precedents when they don’t say why?” And you say in the book about the flip side of that, which is, of course, the danger of saying too much on too short a time frame, on too limited a record: “Committing the Court’s reasoning to print risks hardening what should be tentative into something more definite.”
Do you think that the Court ought to be doing a little more to explain what it’s doing, or is it just unavoidable?
JUSTICE BARRETT: I think it’s unavoidable that we can’t always. I mean, I think that there can be reasonable disagreements in each particular case, each stay application, whether it’s a good opportunity to say more or less, but I think it’s a difficult call. It’s interesting. You know, I turned in the draft of the book, I think maybe right around [Trump’s] inauguration. So certainly, the emergency docket, I think we’ve had more stay applications, and the docket has been around over the last several administrations, but I do think there’s been a lot of activity over the summer.
And as I’ve been talking to people about the book, I’ve actually come around to thinking, maybe we shouldn’t be calling it an emergency docket, but maybe something more like “preliminary docket.” I know some people call it the interim docket. [Ed. — Justice Kavanaugh recently urged adopting this label.]
Because it’s become clear to me, kind of late-dawning, it was just a couple weeks ago, I realized that people [who] criticize us for not writing decisions seem not to understand that it’s not the last word. They seem to think that this is just another track of our merits cases.
Because I’ve had some people say — I had one interlocutor read part of my book where I say opinions are the Court’s most important work product, and then say like, “Well, why isn’t the Court producing opinions and showing its work in the emergency docket?”
The thing is, ultimately, we will, right? A lot of these cases are going to come back to us on the final docket, and we will show our work, and we will have an opinion at that point, and if we put one on the record now, as I said in the book, it risks hardening it for later. And if anything, I hope the book describes the painstaking decision-making process that we go through before we do commit something to print.
So, pick any number of these cases, the removal cases, or, you know, Noem v. Perdomo, the Ninth Circuit immigration enforcement Terry-stop case. I mean, all of those cases, if they come back, are going to get briefing and argument. And I guess I think, we’re not hiding the ball. This is really just a preliminary decision about what’s going to happen, or the status quo that’s going to remain in place until we have a chance to speak on the merits. And I just don’t think — people think, “Oh, we’ve settled the question.”
NR: You quote even in the book Justice Scalia, back in the day, saying that he thought that the justices sometimes were too dug in just by their conference votes.
JUSTICE BARRETT: Yeah. Yeah.
NR: There is an issue though, that if you think about the emergency stays, the standing issue, and the treatment of precedent, all three of those are kind of issues that unavoidably, for all that we commit to the text, involve a certain amount of prudential judgment. Should the court be systematizing more doctrine in those areas, or is it just that getting it right is just unavoidably going to involve prudential judgments?
JUSTICE BARRETT: Well, I think for standing and precedent, we do try to systemize it. I think that the variation in factual situations that comes up, say, in standing, makes it sometimes difficult, because it’s just — they’re novel facts, and then people will disagree about how the injury-in-fact test plays out, say. And similarly for precedent. I mean, we do have a whole doctrine of stare decisis, and people might disagree about how it applies in any individual case, but we do try to systemize that too.
I think for the stay applications, we’re trying to systemize that as well. We do have a standard. We have, you know, the Nken factors [Nken v. Holder (2009)], so we apply the same doctrine in every case. But I think that the process piece of it is where I see that there’s more variation on the emergency docket, because we don’t always write. Sometimes, it’s just standard order language with no explanation. Sometimes it’s explanation. Sometimes we have oral arguments. Sometimes we don’t.
The book talks about how for merits cases, how that our practices with respect to oral argument and opinions and publication and all that really developed over the centuries. I think we’re in the early stages of this stay application stuff, but I actually don’t think it’s a one size fits all. I don’t think oral argument makes every sense in every single one. We did it in the CASA case. We did it in an EPA case the year before, and we did it in the OSHA vaccine mandate case. But I don’t know that every single one.
NR: I guess the TikTok case is another, at least an accelerated —
JUSTICE BARRETT: Accelerated. So anyway, I guess all that’s a long way of saying I think the substantive standards should be systemized, and I think they are, even if they are standards which, because they lend themselves to the exercise of discretion, it can be difficult to predict. I think the process isn’t standardized on the emergency/interim/preliminary docket, but I’m not sure how easily it can be, just because each situation is different and they come fast and furious.
NR: Even the ethics policy strikes me, at least, as the Court trying to put a more public face of standards and rules on something that was maybe, if not, standardless, was a little more ad hoc before that.
JUSTICE BARRETT: Maybe. I mean, the beginning of the Court’s ethics policy says something to the effect — I’m paraphrasing — of, we’re basically just codifying what we’ve been doing all along. You know, the Court got some pushback about that, but it is what we understood ourselves to be doing all along. So I think it codified what might be described as the common law practice before.
NR: Yeah, things that were in various scattered materials that are now something you can actually look up.
In the book you talk, you actually get into some reasonably recent cases, hot button cases. You talk about bringing the Dobbs opinion even on a family vacation. You have some, I could say, careful criticism, or at least reference to prior criticism of the King v. Burwell case, which I would note, is a case that the Court seems to have gone out of its way not to cite as a precedent since then.
JUSTICE BARRETT: [Laughs]
NR: It’s a little unusual for a sitting justice to be talking about things that are fairly recent and hot. Is that something that you made a conscious choice, that you wanted to get people to understand how the Court thinks, even about recent cases?
JUSTICE BARRETT: So, I was very careful to only discuss — the only reason why I discussed King v. Burwell in a critical way is because I was already on the record as a law professor having criticized it. So, I didn’t criticize any other precedent. I took all the Court’s precedents as I found it. So I didn’t criticize, for example, when I described substantive due process doctrine, I wasn’t talking about it like I might have from scratch: “Should this be privileges or immunities clause, you know, etc.” So, the only areas that I did criticize existing precedent were things where I was already on the record.
As for cases like — I described Dobbs and I described the reasoning of Dobbs, but it’s not unusual, and we’re talking about the ethics rules. The ethics rules all say that this is okay. You can describe the Court’s reasoning and current precedent. You can’t describe open issues or say how pending cases might be decided. So I didn’t describe anything about how Dobbs might apply to future cases, but I think it’s important for people to understand what the Court said in Dobbs. So it was kind of a primer — Cliff’s Notes on the Dobbs reasoning, because I think it’s important for people to understand it. Agree or disagree, it was an important decision. So, I think it’s important for people to understand what the Court’s reasoning was.
NR: Understanding that those constraints of rule and decorum are part of this, I kind of read this as a conservative book. Not conservative in [the sense of] political conservative, but conservative in the sense that you talk about being grateful for our existing constitutional order, you go out of your way to explain how the system works, how the institution works, how the body of precedent works now, rather than possibly how it should be. Other justices, Justice Breyer’s book, for example, had a certain amount of argument about how things should be. Some of Justice Scalia’s writings did too. And this seems to me to be a little more of a, “let me explain to you why we should be thankful for the system we have.”
JUSTICE BARRETT: Justice Breyer’s most recent book was published after he retired, so he has a little bit more flexibility.
NR: I’m thinking of the older book.
JUSTICE BARRETT: The older book, yeah. I did want to be above reproach and very, very careful, for the reasons I said before, to not veer into anything that could be regarded as previewing what I might do in a case, and that includes criticizing past precedent, because it’s always possible that that precedent will — I tried to follow confirmation hearing rules, essentially, because, you know, if I made a mistake, someone would surely jump on it, right? So, I tried to be very, very careful.
In terms of encouraging people to be grateful for the system that we have? Absolutely. That’s one of the things that was an animating purpose of the book. I want people to realize that the Court is a great institution. I want people to appreciate the Constitution. Both are human institutions. Both are flawed, but we’re coming up on the 250th anniversary of America.
I think we should be — I think there’s a lot of skepticism about institutions generally. And I think we have come through some years where people have been fairly down on the Constitution, and I love the Constitution, and I love the Court, and I feel very optimistic about both. I’m grateful for the contributions that both have made, and, yeah, I want to inspire that in other people.
NR: And in that sense, the whole project of written law is sort of small-c conservative in that sense. It says that we make a decision and then we stick to it until we thought through changing it.
JUSTICE BARRETT: Absolutely. And I mean, if it’s small-c conservative to say, I don’t think the system should be junked? And, we should tear all of our institutions down and start over? Absolutely not. I think we should be looking for ways, of course, to improve what we have. But starting from a place of, wow, we’re lucky to be American. So this is a great place.