The justice offers her take on writing, advocacy, experience, judicial independence, security threats, amicus briefs, and what she’d ask Justice Scalia.
I n the first half of my conversation with Justice Amy Coney Barrett about her new book, Listening to the Law: Reflections on the Court and the Constitution, we covered topics including originalism and its critics on the right, the Court’s emergency docket, the history of the Court, and gratitude for the Constitution. In the second half, the transcript of which follows, we talked about writing opinions, oral advocacy, amicus briefs, judicial independence, the experience the justices bring to the Court, the pandemic, security threats in an age of political violence, and what she’d ask her former boss if he was still with us.
NR: If President Trump, or some other future president, called you up and said, not going to ask you names, just some advice about what kind of people I should be putting on the Court?
One of the things that interests me is that there is certain amount of professional experience, political philosophy that past justices — certainly Justice Scalia had a philosophy of how Congress works, a philosophy of how the executive branch works, that those things go beyond just reading the materials. You talk in your book about how law students who had worked in Congress were the most skeptical of legislative history. What kinds of professional experiences do you think we should be looking for? Should we have more district judges? Nobody since O’Connor has been an elected official. Justice Alito, I think, is the last military veteran on the Court. There’s different kinds of things we have — two former district judges. What would you do? Do we need a better mix, or what are things you would look for?
JUSTICE BARRETT: I guess in your question, you were identifying the range of experiences that are on the Court. And I think that’s a good thing. I found that to be true on the Seventh Circuit, too. Would it have been helpful for everybody to be a district judge? Well, I don’t know if everybody was a district judge, if it would be that helpful, then you would miss out on having people who had been, you know, public defenders and AUSAs [Assistant U.S. attorneys]. But having a district judge on the panel when there was some question of how things really worked in the district court, or how to understand this piece of a sentencing transcript. That was important.
Justice Kagan was never on the court of appeals, but, she was solicitor general, and she has insight into, she knows how that office works, because she had that experience. So I think it would be a mistake to say, here’s one cookie cutter bag of experience that we have. I think having had people from a range of experiences is actually helpful.
NR: I think the most, the most famous example I can think of that is that there were no former district judges on the court when the Court wrote Clinton v. Jones.
JUSTICE BARRETT: [Laughs]
NR: Those of us, those of us who were practicing civil law thought it was a little ridiculous to suggest that there would be no distractions for the president from sitting for a deposition. And I think we were right.
JUSTICE BARRETT: Uh-huh.
NR: What do you see as the greatest threat to judicial independence going forward?
JUSTICE BARRETT: Hmm. [Pauses] I guess I would say that, one. . . . Let me think about how I want to phrase this. [Pauses]
I guess let’s say this. Rather than thinking about — there are certainly many ways in which judicial independence could be threatened from the outside or from the other branches, etc. But as a judge, it’s probably most productive for me to think about ways in which judicial independence can be threatened from the inside. And I think there is a remarkable amount of pressure on judges, and on courts, not on the Supreme Court, to conform one’s behavior as a judge to expectations of certain members of the public where there’s constant pressure, and so I think that what a judge can control — and a judge can’t control what other people might do to threaten judicial independence — but what the judge can control is how she or he guards his or her own independence.
NR: You mentioned in the book getting your commission, because it was a year later [due to Covid delaying the formal investiture ceremony], from the Biden Justice Department. Were you thinking of William Marbury?
JUSTICE BARRETT: [Laughs] I was not, actually. I was just sitting in the courtroom thinking, oh my gosh, I can’t believe I’m here, sitting in the Marshall chair.
At least I got it.
NR: You did get it.
JUSTICE BARRETT: Marbury didn’t get it.
NR: One of the other things that comes through in a few different places in the book, you talk about when you were first under consideration for the Court, fleeing and climbing a fence in heels after Mass to avoid the press. You mentioned the darker chapter that we’ve seen more about in the press now about the assassin who showed up at Justice Kavanaugh’s house, and certainly we’ve seen more in the media reports about the close link between that and the leaked opinion in Dobbs and the potential threat to other members of the Court. Is that something that you feel more pressing on you? The security threats, the need to have security with you when you go places, and concerns not just for you and your colleagues, but your families, for district judges, court of appeals judges? After Charlie Kirk’s assassination, more people are thinking about, what’s the damage that can be done to our political system by violence?
JUSTICE BARRETT: Yeah. I think that political violence is, I’m deeply concerned about it. I think, after the Charlie Kirk assassination, I was thinking about the rash of assassinations, after John F. Kennedy and Robert Kennedy and Malcolm X and Martin Luther King Jr., and I wasn’t alive then, but I can only imagine how it must have rocked the country to have so many assassinations in a row of a president, attorney general.
I hope that we’re at a point where we’re not as a society going to drive over that cliff and head in that direction. I certainly think that a lot of our social commentary is kind of pretty poisonous. And I think we do have to find a way which is everything I kind of hope to communicate. I mean, we have to find a way to live with one another and cooperate and stop sniping.
I don’t know if you saw, the Free Press reproduced this speech that Arthur Brooks gave at Utah Valley. It was basically, “We’re not enemies, but friends” kind of speech. But it was really good. And I think that’s the cultural moment that we’re at, the political moment that we’re at. Because I do think we’re teetering at a point where we need to . . . Covid did not do us any favors, the amount of time people spent alone and online for whatever reasons. We are at a point where we really need to work hard.
NR: I guess one small side benefit that did come out of the pandemic, that was changing how the Court does oral arguments. You seem to be approving of that in the book.
JUSTICE BARRETT: Yeah. Let’s see. I think it is a very good thing to have more people have access. I do feel anecdotally, I wasn’t on the Court when the system was that the recordings were dropped on Fridays, but as an outsider to the Court, I don’t remember quite the obsessive focus on every single question that was asked. I feel like maybe the live stream has brought with it this hyper-focus of trying to read tea leaves in every single question.
And that’s probably because, Twitter is now there, and people can be live-tweeting as things go on. But I think it’s really good that people can not have to be physically present to be able to hear the Court’s argument in real time.
NR: What would be a time that you’ve thought you wish you could ask your old boss, Justice Scalia, what he thought?
JUSTICE BARRETT: [Laughs] I think there are parts of the job, and you were referencing them a little bit when you were talking about discretion, and there are parts of the job that it’s not like you would learn in law school, or as a court of appeals judge, because it just doesn’t come up. How to think about cert, how to think about precedent, just the things you otherwise get by osmosis, like things having to do with relating to other justices.
Or, I don’t know, how did he decide, when he was — you were asking about being kind of an ambassador for the Constitution outside the Court, how did you decide? How did you prioritize invitations, besides the fact, besides if they were at hunting locations that you wanted to go to? [Laughs] Yeah, what do you think it’s important to use your platform to do — those kinds of things?
NR: Yeah. When he came to our law school class, it was literally a bunch of students in the class wrote him a letter and said, we’re only hearing one side from our criminal law professor. It’s Alan Dershowitz. He came the last day of class and debated Dershowitz face to face. Pulled out his pocket Constitution and everything.
JUSTICE BARRETT: Oh, wow. That must have been really cool.
NR: It was. It was quite a thing to see. I don’t think either of them was debated to a standstill very often.
JUSTICE BARRETT: [Laughs] Yeah, that must have been great. I have not done that, spur of the moment.
NR: But that, too, is the kind of thing that would be harder to do today. Just drop in to a law school class with no entourage.
JUSTICE BARRETT: No, it is every time, there’s so much advanced planning and working out security. He didn’t have [that], and the security details do not post-date Dobbs. They were in place from the time that I came on the Court. But I gather that they were kind of becoming more formalized after Justice Scalia’s death. But certainly, when I knew him, he would come to visit Notre Dame. And remember, if he gave a speech, there were marshals, but there was not the developed larger Supreme Court police presence that there is now. So, yeah, it just makes everything more cumbersome.
NR: How carefully did you have to go over the book to think about — you give a few little glimpses behind the scenes, sort of the social life of the Court? You know, Justice Gorsuch having the Nationals Presidents Race here to greet Justice Kavanaugh, Justice Sotomayor giving Halloween candy for your kids. How carefully did you have to think over, here’s just the little bit that I can give out?
JUSTICE BARRETT: Very, very carefully, because I don’t — I think it’s clear in the book that I really value relationships and I want them to stay smooth, and I certainly don’t want people to think I’m telling tales out of school. So, the Nationals thing was publicly reported in the Post. So I described things that were not, that I knew were not secrets, or that I knew my colleagues wouldn’t mind, because I certainly wouldn’t myself want to be in the position of, if I had a conversation with someone or did something nice for someone to have them, you know, publishing it and saying it publicly, so I tried to be very careful, out of respect for my colleagues.
NR: And yet, your book still debuted just ahead of Charlie Sheen’s on the bestseller list.
JUSTICE BARRETT: [Laughs] Yeah, several friends pointed that out. I felt very proud about that.
NR: Does having a big family make it easier to try to write a book like this that’s obviously intended to be read not only by lawyers?
JUSTICE BARRETT: Having a big family made it harder to write just because my kids are little, so I have less time. I think having a big family of lots of siblings, like my own family of origin, and then my oldest daughter was really helpful throughout the process. She’s 24. Because I could imagine, I’ve had conversations and explained the Court to people who I trust. I have to have my guard up most of the time these days, but not with my siblings and not with my oldest daughter. So I could imagine, I had had conversations, and I could bounce things off of Emma. You know, how does this sound? Do you understand this chapter? Read this chapter
In ways, I guess I have a lot of non-lawyers in my life. I’m not someone who is surrounded solely with, you know, partners at white shoe firms. I have a lot of just regular people who do lots of different things. You might appreciate this, Dan, since you’re a lawyer. One word that Emma got me to cut was equipoise. [Laughs] She was a major in what’s called the program of Liberal Studies at Notre Dame, which is kind of a great books [program]. So she’s well-read. She writes a lot. “I have never heard this. This is a lawyer word.” I said, “Well, then I’m embarrassed I spent all the money on your Notre Dame education.” And so, she sent out a text to all of her friends, came back, no one knew it, so I cut it.
You would use equipoise, wouldn’t you?
NR: Yes, but probably not in a column for a non-legal audience.
JUSTICE BARRETT: Yeah.
NR: The other thing about writing a book like this is that you also have to have a lot of research assistance that went into this. How much time did it really take to pull all of this together?
JUSTICE BARRETT: I’m honestly not sure I would do it again. [Laughs] I think I underestimated it, because when I agreed to do it, I was still pretty — I was thinking, well, I mean, I used to write for a living as a law professor, I still do a lot of writing for a living, but this kind of writing and making it what I hope is interesting and accessible to a non-law audience, as well as interesting enough and accessible enough that a lawyer audience would want to read was harder.
Basically, I could only work on it in the summers, because during the term — the first summer we moved, so it was really the next three summers, because during the term between my family responsibilities and the job, there’s really just not that much time during the term. So it was really a summer project over the three summers or so.
NR: And the summers have gotten less off?
JUSTICE BARRETT: Summers have gotten less leisurely. It used to be more like an academic-year type schedule, but, yeah, there’s been a lot of work over the summers.
NR: Has the Court’s own internal process of getting opinions circulated and done been impaired at all after the leak? Obviously, there’s had to be some more security in how you handle drafts and all. But has that, in your view, slowed things down?
JUSTICE BARRETT: Well, I mean, the Court said publicly, after the leak, you know, that one of the things that was important, was reflection on how we could make things more secure. So we certainly have done that. But the same basic opinion writing process is the same one that remains in place now.
NR: Do you have concerns, is it really something that you think seriously about in the cert process, about, are the lower courts not listening to us? Because that certainly has been, even in dissents from denials of cert, that’s sometimes been an issue that’s been raised, particularly in, say, the Second Amendment area, for example, that maybe some of the lower courts are not paying attention and need a “and we mean it!” decision now and then.
JUSTICE BARRETT: Let’s see. So, as you know, typically, the reason to grant cert is not to correct errors, but to address splits or that kind of a thing. But we do occasionally summarily reverse lower courts, and usually — the standard for summary reversal is this is so obviously wrong that we don’t need to have full briefing and argument to say so. So, if a decision truly contradicts either a statute or the Court’s precedent, then summary reversal is typically the way that will go down.
If there’s a tension, there’s lots of, there’s often a range of ways that one might interpret and apply a Supreme Court decision. And that’s the kinds of areas where splits develop. We wind up granting cert to resolve.
NR: I guess another generational thing that jumped out at me in the book is that you like to write drafts with pen and paper.
JUSTICE BARRETT: Oh. Yeah.
NR: We might be the last generation that does that.
JUSTICE BARRETT: [Laughs] I can see that.
NR: How far do you get into it before you want to sit down and get it on the computer?
JUSTICE BARRETT: It depends. If I’m really stuck, I just find that the pen and paper makes it easier. But I don’t write the entire opinion, because then it’s too many kind of arrows and circles. I already have things like numbered paragraphs where I’m switching them up. I don’t do the whole thing. But for the particular tricky parts of an analysis, or even if I’m just trying to decide how to write the facts, and I just think when I’m sitting there with a word processor, it’s just, rather than focusing on the big picture, I’m just zeroing in on the trees.
NR: Is there anything about how the Court thinks, in the general sense, that you wish you had known even after having clerked, when you were writing law review articles?
JUSTICE BARRETT: I did not, even though I had clerked, and even though, if I had really paused to think about it, it should have been an obvious point, but I didn’t think about it, and I think even law professors and lawyers often don’t: the implications of it being a multi-member Court and the way opinions are written. In fact, a law professor friend shared frustration that another law professor friend had expressed after an opinion that I had written. Like, “Why didn’t this opinion get into X issue or Y issue?”
And I thought to myself, “Oh, my goodness, it’s something I totally would have said, or criticism I totally would have had of the Court’s opinion in the days when I was a law professor or a lawyer trying to make arguments based on them, and it is just, you have to gloss over so many things, if it’s not strictly necessary, and you can get agreement where people say, I won’t sign the opinion unless you drop this point or I’m not sure that I’m ready to say this, not necessarily that I even disagree with you, but I don’t want to take a position on that. So, it really is a group.
My various sets of clerks have been surprised, because they have assumed that the Court’s opinions were really a group effort in the sense that justices wordsmith every word. That doesn’t happen. So, the authoring justice has a lot of discretion in the structure of the opinion and sentences. We don’t wordsmith. But it is very much a group effort when it comes to what points are you going to hit, how much can you say? And you just can’t be as analytically thorough about everything as you might be in a concurrence, in a dissent, or in a law review article.
NR: It sometimes seems obvious that something ended up in a footnote because somebody wanted to say they didn’t join that footnote.
JUSTICE BARRETT: Yeah, yeah, yeah, of course. And sometimes it’s a dizzy number of sections like section part B-1-II-A.
NR: Even lawyers sometimes will say that the second or third to last draft of a brief is the best before everybody has to agree to it.
JUSTICE BARRETT: Yeah. Exactly.
NR: Have you changed your thinking at all on oral advocacy from seeing it now after — not only on the Seventh Circuit, but here how it’s done?
JUSTICE BARRETT: I don’t think so. I mean, I do think that what makes a good advocate is what I thought made a good advocate. Obviously, everybody has to start from the baseline of knowing the case inside and out and being articulate, but to being able to shift on one’s feet and respond to unexpected questions, to be able to anticipate where the bench, the majority of the bench, might be going, and then shift to address it. All of those things, we get to see a lot of excellent lawyers here, but all of those things are what makes a great advocate.
NR: The lawyers very often, particularly in Supreme Court moot arguments, will focus on, okay, here’s who we have to persuade. Do you ever have the sense that somebody’s really trying to get your vote specifically, that you feel like you’re being pitched to?
JUSTICE BARRETT: No. But I have [chuckles], I have, on an occasion or two, seen an advocate — and this isn’t a good sign, this is too much of a tell — with respect to another justice, who the advocate plainly thought was a vote that the advocate needed, basically have the[ir] entire body oriented to that one justice. That’s a little too obvious. I haven’t noticed it for me.
NR: Where do you see the Court changing in the future?
JUSTICE BARRETT: Hmmm. I don’t know the answer to that question. The Court changes pretty slowly. You know, the turtles on the things in the fireplaces right there [gestures toward the fireplace in her office], and we’ve got the turtles everywhere, because we change slowly. A couple of people have asked me [at] these various book events about AI at the Court, whether we use AI, and that is so far off from what the Court would do, just because we move so slowly, especially because of security and all the large language models are pulling [data].
When I was a law clerk, you could not log into the Court’s system from outside the building. And now, you know, we have that, and that has changed the Court because a lot more remote work is possible. So that has changed things some. I used to have to in the summertime wake Justice Scalia up if he was in Europe or something, in the middle of the night, and orally recount, if it was a death penalty issue, what the papers said. And now, all that can be done. So, I think the way in which we work will surely change with technology, albeit slowly.
How the Court will otherwise change is difficult to predict, to say. Unless major changes were made to our jurisdiction, that’s in Congress’s hands. It’s hard for me to imagine that things become dramatically different just as they’ve stayed so much the same for so long.
NR: You sent a bit of a message in the book talking — and other justices have talked about this as well — about how you don’t even read all the amicus briefs. You wait to see which ones your clerks flag as important. Is there any way for the Court to, without being mean, to get people to stop filing quite so many of them?
JUSTICE BARRETT: [Laughs] Apparently, this was one thing that was funny that I discovered in doing the research is, this whole thing about amicus briefs has been that justices have long thought that there were too many. Yeah, I think everybody who wants to file can and should be able to file, but we don’t have the responsibility to read every single one. And I mean, don’t get me wrong, I don’t want to be heard to be too harsh on amicus briefs, because in most cases where amicus briefs are filed, the law clerks do flag portions of several and say, like, “Oh, this is helpful. Take a look at this.” It’s just that, if they’re just making policy arguments, yeah.