← Advisory Opinions
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- [00:01]
A
Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And when we come back, you're going to hear from Justice Amy Coney Barrett. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly, bait stamping, or would you rather focus on your argument? Type Law can take your draft and exhibits and transform them into a court ready, rule compliant E brief and appendix overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order. That's TypeLaw.com hey, it's Ryan Reynolds here from Mint Mobile.
- [01:06]
B
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A
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- [01:39]
C
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B
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- [01:47]
A
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- [01:48]
B
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- [01:55]
A
David, the conversation that we taped with Justice Barrett is our first full podcast with a sitting Supreme Court Justice. This is AO history we're making.
- [02:05]
B
Yes, it is. It's AO history and really enjoyed it. I really enjoyed the conversation and you know, I hope listeners will too. And we're gonna come back afterwards and kind of break down the film a bit, so. So stay tuned for after the interview.
- [02:21]
A
Here we go. All right, Justice Barrett, we're gonna start with a lightning round. And even worse than that, we're gonna start with a case from this coming term that was also argued last term. Here is the lightning round question. The word C A L L A I S is the name of the case. You are from New Orleans originally. This word is coming from Louisiana. The Chief justice pronounced it K lay. Do you think that's an accurate pronunciation?
- [02:55]
C
Well, I would not sit in review over the Chief justice, but as a new orleanian If I just saw that, I would say Calais.
- [03:03]
A
Okay, next question. The word in Latin means to be informed. I have gone through all of your past oral arguments since you've been on this court, and I have never heard you say the word. Will you say it for this podcast?
- [03:18]
C
To be informed, I'm embarrassed to say I don't know what Latin word you're talking about.
- [03:24]
A
C, E, R, T, letters, letters, letters.
- [03:26]
C
Cerseirari.
- [03:28]
A
Okay, interesting. There's a real divide on the court among that one. Okay, and last, last lightning round question. Is it the emergency docket or is it the interim docket?
- [03:39]
C
I say emergency docket.
- [03:41]
B
Okay, that's been a part of our podcast is a live long running debate over is it shadow docket, is it emergency docket? Is it interim docket? I'm the only person in America who is waving the flag for equity docket, which I think is just fantastic. But you've weighed in. Emergency docket.
- [04:00]
C
Emergency docket.
- [04:01]
B
All right, well, the entire podcast is not going to be lightning round questions, thank goodness. Yeah, no, we're. We want to talk about your book, your new book, Listening to the Law. And when I was reading it, one thing that really struck me is I think that the book really does introduce to a lot of Americans. It's sort of lifting the veil on the court where they are able to see how this place works and from start to finish, how this place works. How much of that sort of civic education component was in your mind when you were crafting the book?
- [04:38]
C
Well, that was very much in my mind when I was writing the book, because that's sort of why I wrote the book. I mean, I have, and I hope this comes through in the book, great admiration for the court and the Constitution. And I really wanted to share that with people. I talked to a lot of groups, grade school groups, lawyers. I just taught a class last week at Notre Dame, law students. And you would be surprised how, despite the age range and experience range of the various groups to which I speak, the questions are the same. How do you get cases? How do you decide cases? Do the justices get along all of those sorts of questions? And I can't talk to everyone, but I could write a book that made those questions and my answers accessible to everyone.
- [05:21]
A
Since you mentioned law school, and we're going to talk about text history and tradition and originalism and those types of issues, but if you could wave a magic wand, be dean for a day, however you want to think about it, what is the class that you think law students should be mandated to take. Now, that maybe doesn't exist in the curriculum, given the current court, the current jurisprudence of the justices.
- [05:44]
C
You know, I don't think that there's a class that I would add, but I think classes should be sure to cover certain topics. So, for example, I think leg reg has been a great addition to the curriculum in the last 10 years or so. And, and I think focusing on statutes and regulations, because, as you know, you're lawyers, so much of law practice is really dominated by statutes and regulations when it comes to the Constitution. Yeah, I think that probably enough law schools don't cover originalism. And whether the law professor is a critic or is sympathetic to it, I mean, the reality is it's out there and there are a lot of judges who are sympathetic to it. And I think those are arguments that have to be taken seriously. So I think, and many law schools do this already, but I think that having all perspectives and all arguments put on the table is really crucial.
- [06:38]
B
Well, let's talk about originalism for a minute, because one thing that was really interesting to me was reading your thoughts on originalism. And really the last third of the book is where you really start to flesh out your thoughts on originalism. And you echoed a theme that we've had in this podcast, that originalism is not some sort of magic formula under which you can sort of plug in a set of facts and a set of precedent and just generate. This is the absolute, historically correct answer that there is room for disagreement in originalism. So one of my questions is, okay, if someone's hearing this, I think one of the. I think in some ways the early architects of originalism or the early public advocates kind of maybe misled a little bit that this is more definite and certain than it really is, that it is more malleable than we might think it in that circumstance. What advantage does it have over, say, purposivism or other theories that also are somewhat malleable? Are we still, at the end of the day, just kind of dealing with the judge's judgment?
- [07:43]
C
Well, all judging is a matter of judgment, hence the name. I don't think that the early advocates of originalism misled, but I think it was first wave originalism and it was kind of figuring out how this was going to work. And I think it's important to recognize, as originalist scholars like Keith Whittington have, that originalism wasn't new in the 80s. It was something that the court had been doing since the beginning. I think it became more of a self Conscious theory in the 80s in reaction to the court starting to do something that was very different during the Warren and Berger years. As for originalism not being a right answer generator, if you have chosen originalism because you think it is a tool of judicial restraint, then I think you have to be very worried about that. I don't know that many people who have chosen it as a theory or who gravitate towards it because it's a theory of judicial restraint, although I think it does have that effect. Any theory can be misused or people can have different opinions if they're judges. And I mean, that's true of originalism, too, because people can have different interpretations of history, just like they can have different interpretations of precedent. They can have different interpretations of what constitutional or statutory text means. But I think in the argument that I make in the book, or actually I try to explain my view in the book rather than arguing it, is that originalism, for me is the right way to think about the law. Because if you think about the text as what was enacted as the law, in terms of the Constitution, what was ratified, that's why I'm an originalist, because I think that's what the law is.
- [09:20]
A
Okay, for those reading along at home, you will now open your hymnals to chapter 12. I want to get into the weeds here a little bit on this and on how to do originalism, Barrett style. And you talk about intent versus expectations versus text, and in particular, I find the expectations something that I stumble over, or rather maybe intent versus expectations. You give the example of a New Year's resolution to follow a healthy diet. Reading here, after happily making that commitment, I might be dismayed to learn that many foods I thought were healthy, say flavored yogurt, protein bars, and sports drinks, are full of empty calories. Tough luck. If I'm serious about the resolution, I must let those foods go, even if I initially thought I could keep eating them. And you compare this to, for instance, the Alien and Sedition Acts in the Adams administration vis a vis the First Amendment as a. You know, maybe they knew what it meant, but they had the temptation nevertheless to violate it. I also have Loving vs. Virginia brought to mind from the 14th Amendment. Equal protection under the law. But nobody at the time had the expectation that it would implicate interracial marriage. So how. How is intent different expectations? Explain this to me. I find it really hard.
- [10:41]
C
Well, that's true of segregated schools on the 14th Amendment, too, right?
- [10:44]
A
Yep.
- [10:45]
C
I think you ratify a principle you know, you have enacted. I mean, and sometimes the ratified text can be more specific than in other instances. The, you know, example always given is that the president must be at least 35 years old. And sometimes the text that is ratified is more broadly written. You know, and that is true of phrases like freedom of speech and equal protection of the law. But, you know, that diet example that I give, you know, the point is that you have committed to a principle and you can't foresee all of the applications. And so you have to go where the text leads you, even if you are one of the ratifying generation. And it's not just that those of us who come later down the line have to go and follow the text where it leads. Now, I think, and I say this in the book, that expected applications can be relevant. They're not irrelevant. So the example that I give in the book is if I commit myself to a healthy diet, but I talk about eating grilled chicken, then we know that for me, healthy did not mean vegan. So it can narrow the range. It's just not determinative.
- [11:48]
A
So that, to me, is a really good explanation for how we should think about maybe the Second Amendment and new types of weapons. Or I always like the KYLO case of GPS or heat, what do you call those devices? The heat seeking. It's not heat seeking where you can see in the house, thermal sensing devices, things that they couldn't possibly anticipate. So their expectations are not helpful in that. But again, when you think about racial segregation or something, aren't the expectations, like, baked into what they were doing and talking about?
- [12:21]
C
I guess I don't think so, because it's kind of the classic problem that we have in statutory interpretation. You know, there are many minds. And so how can intent ever control? Because you could have had some people in the ratifying generation, whether we're talking about the Reconstruction Amendments or whether we're talking about the original Constitution. Some. Some people may have thought, yes, this is what I expect it to do. I would expect it. And as you know, there was a big controversy about the sedition acts and whether they did violate the First Amendment. People probably would have disagreed about that if they had anticipated the problem and been asked about it. But no one person's intent could control so the same way. And we talk about that very clearly, I think when people are talking about statutory interpretation, but really the same principle applies in the constitutional context is as well.
- [13:08]
B
So you tease out some interesting distinctions in the book between text, intent, and context. So the text is the touchstone. You're not Looking for. You're not doing a search for One thing I thought was very interesting in the book, as you talk about the legislative intent would sometimes be retconned or put into. Sorry, that's a comic book term. I shouldn't be using that. That the intent would sometimes come in after the act was passed, that people would be messing with the historical record to alter the intent even after the statute had been passed. Which was really interesting if intent isn't the question, but context matters. And you bring up this hypothetical that's fascinating, which is, let's suppose you have a sign that says green vehicles only and it's a charging station and all that, but then a big gas guzzling green Ford F150 pulls up. How do you adjudicate that situation? It's a green vehicle, it's colored green. But the obvious intent, or is it context is that this is for. Supposed to be for electric vehicles. So if you could sort of tease out in that hypothetical, which I thought was very vivid, what matters there? The text, the intent or the context?
- [14:29]
C
Well, all language is about context. Our conversation right now we know what one another is saying or we understand what we're each saying because of the context of the conversation and that we're talking about law. So we can't communicate in the English language unless we're taking account of context. And so in that green vehicles example, it's text and context. It's because you see it in a parking lot, you see it by a charging station, you understand that in context the word green isn't referring to a color. The word, the word green is referring to environmentally friendly.
- [15:03]
A
Let's move to some of the practical aspects of being a justice on the Court. What is the thing that an advocate can do immediately to win or lose credibility with you during oral argument, if any? Because part of the conversation's also. Does oral argument matter anymore?
- [15:19]
C
Oh, no, I do think oral argument matters. Losing credibility. I don't think that too many advocates that I've seen, in fact I can't think of a single one of lost credibility with me. I don't know that I would put it that way. But I think the best advocates are equally interested in answering questions asked by justices who they think they've got and justices who they think they probably never had from the start. And they show equal patience and they show equal interest and they don't betray any kind of frustration and they can be quick on their feet. I saw one ORLA argument. The lawyer was utterly amazing. You could tell he was the respondent represented the respondent when he got up. He knew from the first argument, he knew from the petitioner side that his lead argument, the one that he had pressed most in the brief, wasn't going to win. And it's not that he changed the argument. I'm not in favor of that. But he shifted his focus because he could tell. And, and he did that on the fly. I mean, he could just tell how he needed to adjust his argument. It could not have been what he had prepared. So it was still within his brief. I want to emphasize over and over and over again that no justice likes it when arguments made in the court differ from those made in the brief. But just the way that he shaped his argument to fit was completely impressive.
- [16:46]
B
Another question. Some of these are a little bit grab baggish, but very much in our areas of curiosity, we talk a lot about decisions to write separately. When do you write a dissent? When do you write a concurrence and how helpful is it or not helpful to have multiple concurrences, multiple dissents? How do you make that decision? When do you decide? I'm going to weigh in. I'm going to concur here. I'm going to dissent here separately.
- [17:14]
C
I think about it. So I'm just sharing my own view. My own view. What I say in the book, I describe it as a little bit institutionalist. I'm content. My default is that the majority opinion, if I'm in the majority, speaks for the court. And I will add something. If, for example, I don't join all of the majority or if I just concur in the judgment, then usually I will write to explain why I didn't join that part or I didn't join the opinion. Other than that, I will write sometimes when I think it's important to emphasize the scope of the opinion. And then occasionally I will write if I really think there's an argument that needed to be answered, especially for myself and maybe the way that I view the law that the majority didn't answer because maybe it's a methodological question on which there may be some disagreement in the Court. That's why I wrote in Biden versus Nebraska. I wrote about the major questions doctrine there and I thought Justice Kagan had made a good point about, about major questions being a get out of text free card. I mean, I disagreed with that point. When I call it a good point. I thought it was a point that needed to be answered. And so it was a point that I chose to answer. So those are the circumstances under which I'll write separately in a concurrence.
- [18:28]
A
Okay, emergency docket, as you call it.
- [18:33]
B
Am I going to have to give up on equity docket? I think I'm just going to have to give up.
- [18:36]
C
Anyone else refer to it as the equity docket.
- [18:39]
B
Well, I will say this, that David Latt's newsletter, he had a poll about this and apparently equity docket was winning among the microscopic portion of its audience that were libertarians. So I have the majority of the 2% on that. So yeah, I might have to give this up.
- [18:57]
A
I mean, we've heard Justice Kavanaugh, when he went to Was it the 6th or 8th Circuit Conference, he referred to it as interim docket. I just feel like we're, we can't even agree on the name of this thing. It's turning into a problem. Okay. On the emergency docket, though, one of the controversies with it is whether we're seeing writing from the court explaining the majority's reasoning and the precedential value of those decisions when we don't see writing from the majority on the reasoning. So we might have 15 pages from dissenting justices, but then lower courts are supposed to follow this. We've seen the court now show some frustration that lower courts are not following it enough or hewing not only to its decision, its judgment, but also its reasoning. What is this going to look like a year from now? Are we settling into this new system? And we'll hear the answer to that question when we get back from this break. This episode is brought to you by Squarespace. Squarespace is the all in one platform for building a professional online presence. Whether you're launching a consulting business or publishing your writing, or simply creating a hub for your work, Squarespace makes it simple. With Squarespace's cutting edge design tools, you can build a professional looking site in just a few clicks. Start with a template or use their blueprint AI to generate a site tailored to your goals and style. No coding required and everything looks polished right away. But Squarespace isn't just about design. You can also offer services, schedule appointments, and get paid directly through your website. That means less time juggling different tools and more time focusing on the work that matters. Squarespace also includes analytic tools to help you understand who's visiting your site, and built in email campaigns so you can stay connected with readers or clients without needing separate software. Head to www.squarespace.comadvisory for a free trial. And when you're ready to launch, use Code advisory to save 10% off your first purchase. Of a website or domain. As the days cool down, the coffee routine around here shifts. Comforting warm mugs in the crisp mornings, refreshing iced coffee in the sunny afternoons. No matter the season, hot or cold, Trade recommends beans you'll love, roasts them to order and delivers them right to your door. It's like having your favorite cafe on standby without ever leaving home. Trade is the number one coffee destination in the United States for both hot and cold coffee drinkers. They've sourced the best beans from over 50 top roasters across the United States. For cold brew lovers, they've teamed up with 15 roasters to create a special collection made just for cold brew, so every cup comes out smooth and delicious every time. Take their quiz and in under a minute, they'll recommend coffees you'll love. If that first bag isn't quite right, no problem. Trade will replace it for free until they nail it. Right now, Trade is offering 50% off a one month trial at drinktrade.com advisory that's drinktrade.com advisory advisory to get 50% off your first month drinktrade.com advisory and we're back. Justice Amy Coney Barrett answering the question about the emergency docket.
- [22:08]
C
I'll start by saying I think that the emergency docket is new for judges at all levels of the judiciary.
- [22:16]
A
Why is that? Do you have a sense of why it feels new?
- [22:19]
C
I think I would have to be someone, an academic who was studying the, you know, the, the statistics and the numbers. Whether it's the rise in the number of emergency orders, maybe there's a rise in the amount of litigation. I just don't know. Maybe it's a rise in the nature of the problems that we're currently facing. I don't know. I mean, certainly district courts are used to seeing PIs and having to act quickly. But when I was on the 7th Circuit, we had motions panels and I can't remember, I think we sat for three weeks at a time. Maybe I wrote a paragraph or two in response to one of those. It was pretty light duty, including requests for stays or requests for injunctions, you know, that kind of emergency relief.
- [23:01]
A
And that wasn't that long ago. We're talking five years ago, six years ago.
- [23:05]
C
Now, when you look at what court of appeals judges are facing, they're facing many of the same questions. And I would say that motions duty, especially in the circuits that are seeing a lot of these right now, is a lot more onerous than it used to be because court of appeals judges are facing this. And obviously, as Your question suggests we are facing this, too. And so I think we're all trying to figure out what the best way is to handle this. I talk about in the book the evolution of oral argument and how the court has handled its merit docket. And that was over 200 years. When you think about how new the emergency docket is, I mean, we're definitely in the infancy. I'll just say a couple things about the decision to write. I think it's very complicated when to decide whether to write. As you say, we're figuring out how to think about precedent on the emergency docket. And when you write a lot, there is a lock in effect. One of the drawbacks of the emergency docket is that there's no opportunity for percolation. There's often not opportunity for a lot of reason, to position opinions below. So we are in a position where we might be writing sooner than we want to be or with less information that we want to be. So, you know, sometimes less is more. I think also writing for the majority takes time. You know, I describe in the book on the merit docket, you know, the going back and forth and we exchange memoranda and people are making suggestions about phrases and sentences because people want to get it just right. If, if we're going to call it the emergency docket and not the equity.
- [24:38]
B
Docket, I concede reluctantly, or even the.
- [24:42]
C
Interim docket, that implies a short amount of time. You don't have the time to go back and forth if you're actually going to dispose of these things quickly. It's not a question of can you write 15 pages in the amount of time. It's just the nature of majority opinion is different than the nature of a dissent. So a dissent can say whatever, and this is true of a concurrence too, can say in the author's own voice whatever it is that person wants to say without having to worry about the lock in effect, without having to worry about getting every phrase to be something that a majority of the court can sign onto. So that makes that a little bit different, too. So I think there are a lot of factors, you know, just including the two I mentioned, speed and having to think about the lock in effect, you know, that the court has to take into account, and the court has to make those judgments themselves about whether to write on a fast timeline.
- [25:33]
B
Shifting a little bit back to originalism. One of the interesting elements of the text, history and tradition debate, to me, me, is when we get to the history element. I'm very familiar with sort of the when is the history relevant? Is it immediate post ratification, is it during the ratification process, et cetera? But there's also kind of a larger question that hovers over for me. I see a lot of these opinions, especially in text, history and tradition has been especially prevalent in the Second Amendment context that go back to legislative enactment. A legislature in Kentucky in 16, I mean, not 16, 1868 or whatever, or a town council in 1872. But these are not interpretive bodies. These are legislative bodies. And it struck me as interesting that the court would go to legislative bodies to determine the meaning of a constitutional provision when that is not the role of the legislative body. It's a lawmaker, it's not a law interpreter. And so how are judges supposed to look at these post ratification legislative enactments?
- [26:43]
C
I guess I would say I think it's a little bit more complicated than that, David, because we have always looked at legislative enactments. Think about the first Congress. So, you know, I taught federal courts for many years and we always, you know, I would say Hart and Wechsler often refers to what the first Congress said, including in the Judiciary act of 1789. So we have treated that in the past in some contexts as evidence. So I don't think legislative enactments are out of bounds as something that would be evidence. I do think that the text, history and tradition debate is one that is evolving on the Court. You know, it's one I've written about and some of my separate opinions. I think we have to be careful with it. I think we have to be careful with it because what is the basis for treating tradition as determinative? I've seen said in opinion. So I'm not talking out of school here when we're starting to get pretty far away from the Founding. I mean, maybe there are some reasons in some circumstances to use it. And doctrinally the Court has made it part of the test in areas like the due process Clause. But I'm not sure that it's something that applies equally across all provisions. So I do think that's very much an evolving debate, part of at least.
- [27:53]
A
A theory as to the emergency docket or as even to the role of the Court currently taking a bigger chunk of media attention and otherwise, whether it's confirmation hearings or decision hand downs, is that Congress is doing less. And so you have the presidency doing more. And whether the president is the one to get to do more then ends up in the courts. What do we do when we have two branches that seem to be dragging a third branch along. And how are we supposed to ensure that? Per your judicial philosophy and ours, really, judges are not supposed to be policymakers. They're supposed to be thinking about those statutory texts or the Constitution, the separation of powers, federalism, which you write about. But all of that really relies primarily on having a functioning legislative branch.
- [28:47]
C
Well, I guess I can only talk about the problem from my own perspective, and I would say that the judiciary is by design, a passive branch, and we take what comes. So we don't get to pick and choose what cases get filed in the district courts. You know, litigants are the ones that bring the cases, and when they come to us, litigants file them. I mean, it is true that at the court, we have some discretion at least, you know, on the certiorari docket. You know, we have less discretion, frankly, in the emergency docket, because as Justice Kavanaugh has written, each one has to be granted or denied, whereas the cert docket, we just have a lot more discretion about what we take and what we don't. But even on that docket, when things are of national importance and often the kinds of things you're referring to are, and very easily satisfy the CEHRT standards, we'll be irresponsible not to take many of those cases. I mean, they're ones that we really do need to take. When there are circuit splits and that kind of a thing, we just have to take what comes, right? I mean, we. We don't go out and look for the disputes. The disputes come to us. And one of the things that I love, I quote this in the book. I think it was Justice Powell and Justice o' Connor at different times, pointing out that the Supreme Court is a fairly reliable mirror of the domestic issues confronting the nation. And I think when you look at our docket right now, that's certainly true. I mean, our docket is seeing to the extent that we see immigration, for example, you know, there are, you know, right now politically, a lot of disputes about immigration. And so, you know, like night follows day, we have disputes about immigration that are on our docket.
- [30:30]
B
In the book. One thing that I found very interesting was your discussion of clerkships and clerk life and your life as a Justice Scalia clerk. And it was interesting at one point in the book, you talk about that he did a lot of his own work, so to speak. In other words, that he was doing a lot, that he was taking the lead and drafting, that he was doing an awful lot of work that left you with different workloads and Other clerks and things like this. How influential was that Scalia model and the way Scalia ran his chambers, the way Scalia did his job. How influential has that been on your own approach?
- [31:12]
C
I think my experience has been it's a little bit like parenting. You parent based on what you like and what you didn't like from what your parents did. Right. And so I worked for two great judges, Judge Silberman and Justice Scalia. And so I would say that largely because I had such good experiences, I have modeled what I do off of the way that they work. I will say that I do do some things differently. Justice Clear Scalia required very short bench memos, and he did not like it if you exceeded his very strict lengths of, like, I can't remember what they were a page or two, maybe even that little. I just want regular bench memos. I really do. Because what I do is I read the briefs and I do all of my preparation, obviously, you know, in the weeks before argument. But on the morning of argument and on the morning of conference, I want to be able to just kind of refresh my memory. And so I will look at the bench memo with my own notes added in places where I disagree with the clerk, places where I've asked the clerk to add more research or fill out a different issue. So that's one way in which I've diverged. But otherwise, Justice Scalia had his law clerks write first drafts, and then he would transform them. That's basically the approach I use. I have my law clerks write first drafts, and then I take them over and I transform them. And, you know, Justice Scalia was working at a time when the computer systems at the court were a little bit, shall we say, less advanced than they are now. So now my clerks and I are going back and forth in Redline, you know, in Microsoft Word, you know, doing comment bubbles and that sort of thing. So technologically, things look different.
- [32:55]
A
Speaking of writing, you've described yourself in the book as more Hemingway than Dostoevsky, that you had to be forced to put. Put in adverbs and whatnot into the book. You also, though, this is the part that really stuck with me, that you start your writing process for the book, at least on pen and paper, because working on a computer basically tempts you into editing in real time.
- [33:17]
C
Oh, I do that for opinions, too, and I used to do that for law review articles. I start with pen and paper.
- [33:21]
A
Really. Okay, just describe. Are we talking a legal pad? What kind of pen are you using?
- [33:25]
B
I don't even Know if my hand works to write out exactly sentences any longer.
- [33:30]
C
You know, I start with pen and paper. I use a legal pad and I am partial to pilot black ballpoint pens. I do that because whatever kind of writing I'm doing, whether it's, you know, draft opinions or the book or, you know, in the old days, law review articles, I find, as you said, I'm less tempted to keep obsessively editing each sentence to get it perfect and, and to make the task go faster, to make it flow. I find it better to be able to discipline myself to just write and then I can go back and I can perfect the prose. But just getting the analytical frame of the argument out first, I think that's what I've got to do to keep the process rolling.
- [34:11]
A
Do you type it up yourself and then do you edit while you're typing? That would be really hard for me to type up something I wrote by hand without doing the edits. Sort of be like, oh, that's typically.
- [34:21]
C
Well, I should say too, I don't write the whole thing out. I mean, I'm doing it section by section. I'll draft out and do outlines of certain parts and then I'll fill in on the computer. So it's not a perfect, let's say I have 30 pages of cursive on a legal pad. It's not quite like that.
- [34:37]
A
It's a lot of legal pads that they're going through in the Barrett chambers.
- [34:40]
B
I think I was also very interested in your description of the conference. So there's some elements, many elements of the book. I think that if somebody had never heard about the, never really read about the Court, never really knew how it worked, that would be particularly interesting. And to me, the conference was very interesting in the way in which, and maybe describe a bit how this process works where you're speaking one at a time on cases in order of seniority. With the less senior you are, you feel like the less opportunity you have to persuade, but sort of walk through that process because I think that that's a part of the book that really lifts the veil on the decision making process itself in a way that I don't think that your average person understands how these decisions are ultimately arrived at conference.
- [35:31]
C
The only people in the room are the nine justices. And I think that in and of itself is important for Americans to know because I think that the Supreme Court is the one branch of government where Americans know that the justices are doing their own work. We do not have law clerks in that room. We don't have assistants who are transcribing. It is just the Justices. And we go around the table and we talk about the cases. You know, different Chief Justices have run conference differently. I was obviously never in the room with Chief Justice Rehnquist, but, you know, the stories told about him, this is not anything confidential. This is just, you know, the lore that's out there is that, you know, he ran a very tight shit, just like he did at oral argument. You know, he kind of wanted it to go. Chief Justice Roberts, you know, is a different person. So he has his own style, just like he does at oral arguments. But we do, we speak in order of seniority. Each justice goes around the table, expresses his or her view of the case, and casts a tentative vote. Justice Stevens, in one of the books that he wrote, described his frustration because when he was junior justice, he did feel like once it got down to him, it was kind of like, well, you know, everybody's already said their piece. What's left for me to say that could influence anyone? You know, I'm second to last right now, so, you know, I go eighth. And I guess I don't necessarily feel frustration. I think, you know, just as in a family, there are pros and cons to being oldest and youngest. You know, I think that's true of seniority as well. On the one hand, I can shape my comments to what others have said before, and I know what's coming and I know what issues people are particularly interested in. And you don't get that opportunity if you go first or second or third. The flip side is, yeah, you come towards the end of the line, but people can come back around and say, oh, wow, that was really interesting. I want to think about that more. So it's not like everything is set in stone, but when Justice Stevens said that, when I read that, I thought, yeah, I hear you. I know what you're talking about.
- [37:34]
B
But persuasion does occur. In other words, there are times when the Justices do win their colleagues over, maybe on a point or maybe on changing from yes to no or no to yes. I mean, how often is persuasion actually in play?
- [37:51]
C
Persuasion is part of the process. Yeah, persuasion is in play. And persuasion, I think, is particularly important when it comes to the scope of the opinion. Persuasion is important when there are multiple paths to decision. Persuasion is important because people can make a case. This is how we should frame a decision. Or this is where there's common ground and we are very much a multi member body. I think that sometimes I've had the experience with Some law clerks at the start of a term or some students thinking that everything lies in the hands of the author of an opinion. But that's really not true. I mean, I say in the book, the task of the author of an opinion is to fairly reflect the views of the conference, and the views of the conference are stated at conference. So it's not just what Barrett thinks. Right. It's Barrett doing the drafting, but trying to represent the views of the conference.
- [38:44]
A
Okay. After conference, you head to the Justice's dining room where Marbury and Madison sit and judge you while you eat. And there's no case talk there. Will you talk a little bit about the justices off case talk?
- [38:57]
C
Yeah. So this is a long standing tradition of the court to eat together. And I think that's really important. I think it's important to get to know one another as people. One of the themes that I try to draw out in the book is that there are things about the way we do things at the court that I think would be healthy for everyone to do all of the time. And I think spending time together and things like meals or other social time where you're not talking about work or especially things that you might disagree about, it's opportunities to build relationships with people as people.
- [39:35]
A
What does Justice Barrett bring to conference? Lunch. Post conference lunch?
- [39:38]
C
Oh, I've gotten teased for what I bring to lunch because it will often tend to be healthy. Not that other people don't. I'm not revealing anything about what other people eat. And there's dietary choices. But, you know, I have brought. I bring yogurt a lot. My oldest daughter got me into chia seed pudding, so I've made chia seeding pudding and brought that.
- [40:00]
A
Do you talk about what, you know, you're binge watching on tv. What is your go to show right now?
- [40:06]
C
Oh, my go to show where Jesse and I are very much waiting for the next season of Slow Horses.
- [40:11]
B
Yes.
- [40:11]
C
Thank you. We really enjoy that. Enjoy that.
- [40:13]
A
I just started it.
- [40:14]
C
Yeah. Oh, did you just start it? You'll like it.
- [40:17]
A
Episode three of season one.
- [40:19]
B
Yeah. Excellent television. Excellent.
- [40:22]
A
It is really good. Okay, you have to ask our last question. You know the question. All listeners will know the question that we must ask of Justice Barrett before we let her leave.
- [40:30]
B
So this might be the highest stakes question because we have personal rivalry over your. We're invested in your answer in a personal rivalry.
- [40:38]
A
And that is two other justices have weighed in.
- [40:40]
B
Two other justices have weighed in. And so it is this. If I am a young person and I can get into a very good law school. But I don't know if I want to be a lawyer or not. Should I go to law school as an option, expanding choice, or should I not go to law school unless I'm certain that I want to be a lawyer?
- [41:00]
C
I think it's a range. I mean, can we ever really be certain in a 100% way that we want to do anything? I don't think certainty can fairly be the standard. So I think it depends where in that range you fall. You can do a lot of things, as you both know, with a law degree that don't involve the practice of law and being at a big firm. So it can be an option expanding choice in that way. What I will say and what was very important to me when I made my own choice of law school is that if you. Depending on where you fall in that range of certainty and what you think you want to do, I very much think that students should take into account how much debt they are going to wind up with when they finish. So I think there is a big difference between going to your flagship state school, if that has a really good law program, and the amount of debt you will take out of that from going to the most expensive private school just because it was the best school you got into. I think scholarships, you know, I had a full ride to law school and that's one of the reasons why I chose Notre Dame. Not the only reason I was. That's the reason I accepted, not the reason I applied. But that factored into my decision because I didn't want to be tied down to having to go to big law. I wanted to have a range of choices, including deciding not to practice law at all.
- [42:16]
A
I don't know, David. I don't know who won that one.
- [42:18]
B
I'm going to take the victory, I think, just fairly. I would say it's a majority opinion.
- [42:24]
A
But do I get Breyer and Gorsuch then? Is it 2:1?
- [42:26]
B
No, I get Gorsuch. It's 2:1 for me. And with a Barrett concurrence that is agreeing with some of the dissent. So that's the way I would put it.
- [42:34]
A
Justice Barrett, your book Listening to the Law is available now everywhere that books are, I guess. Thank you so much for joining us on advisory opinions and David and I will be back to discuss all of that interview right after this break. Going online without ExpressVPN is like not having a case for your phone. Most of the time you'll probably be fine, but all it takes is One drop and you'll wish you'd spent those extra dollars on a case. Every time you connect to an unencrypted network in cafes, hotels, airports, your online data is not secure. Any hacker on the same network can gain access to and steal your personal data passwords, bank logins, credit card details. It doesn't take much technical knowledge to hack someone. Just some cheap hardware is all that's needed. A smart 12 year old could probably do this. ExpressVPN stops hackers from stealing your data by creating a secure, encrypted tunnel between your device and the Internet. Look, ExpressVPN is super secure. It would take a hacker with a supercomputer over a billion years to get past ExpressVPN's encryption. It's easy to use, which is why it's rated number one by top tech reviewers like CNET and the Verge. Husband of the Pod and I travel a lot. We can't wait to do every financial transaction or sign in to any website until we're back home. We have to be able to do it on the road. That's what ExpressVPN is great for. Secure your online data today by visiting expressvpn.com advisory that's E X P R E S s v p n.com advisory to find out how you can get up to four extra months. Free expressvpn.com advisory life insurance is more affordable than you think. With Ethos, you can get a free quote and customize a rate that fits your budget. A lot of us know we need life insurance to protect our family's financial future if anything happens to us, and one of the biggest excuses for putting it off might be that you think it's too expensive. According to an April 2024 Limra study, people are overestimating the cost of life insurance by three times. But with Ethos, you can get affordable life insurance easily online. You can get up to $3 million in coverage, some policies as low as $2 a day billed monthly. Lock in your rate today, since premiums can go up as you age. Ethos is a trustworthy company that disrupts the traditional life insurance industry. As of March 2025, Business Insider named Ethos the number one no medical exam instant life insurance provider. Protect your family with life insurance from Ethos. Get your free quote today@ethos.com dispatch that's e t h o s.com dispatch whoo. David we did it. Takeaways from the interview Thoughts from the book that we didn't get to anything about her New Orleans recipes, et cetera, that are in the book. Although I did want an appendix with actual recipes that was missing for me.
- [45:35]
B
You know, one of the themes that came through as I was reading the book was that it felt like, in some ways, advisory opinions, the book. And the reason why I say that is if you listen to this podcast, one of the things you're constantly hearing is civic education. So it's civic education in the sense of, this is what the Supreme Court does very critically. This is what the Supreme Court does not do. This is how the Supreme Court operates. This is the history around the court. And so I felt like, in a lot of ways, the book was a public service on just the civic side of it, but then it spent, like, the last third, really diving into another favorite topic of advisory opinions. What the heck is this originalism thing? And I thought that that part of the interview with Justice Barrett was my favorite part, because the part where she says that we have to be careful with it was very interesting to me because. And I didn't ask the question exactly the right way answered. I wanted to ask it, which I said, hey, did some of the original architects of originalism sort of mislead us as to how precise it was? And I didn't mean to come across as, like, they're rubbing in Mr. Burns, like, rubbing their hands. Excellent. We fooled. No. As in, originalism had never been the dominant interpretive model for the courts. And so going into this project, it felt more certain than it has ended up being. That's the main point that I was trying to make. And I think her answer was kind of sort of, yeah, yeah. It's not as precise as we might like. There's room for maneuver in there, and that's what we have to be careful with.
- [47:18]
A
Okay, so the one line that I think was the, like, if you're really into this stuff, like, bombshell. But it's very. Justice Barrett, if you've been paying attention, is when she says, to your point, David, originalism is not a method of judicial restraint.
- [47:35]
C
What?
- [47:36]
A
Because I think that if you asked folks in 1982 what the purpose of originalism is, the number one answer on the Family Feud board would be judicial restraint. And Professor Joel Alicea, friend of the pod, he has expounded on this a little bit and said that basically there's this Justice Kavanaugh model, if you will, where the purpose of originalism is judicial restraint. It is to restrain judges from imposing their policy preferences onto the system of government. And for Justice Barrett, it is simply the Best way to discern what the text means in context and intent and expectations and all those other things we talked about, but that it's not a tool for judicial restraint. And I thought what really came through in her book was a pretty honest assessment of the weaknesses of originalism, whether she intended that or not. I came away feeling like originalism, the worst form of judicial philosophy, except for all the others, not originalism. It's amazing and solves all of your problems.
- [48:46]
B
Oh, that is 1,000% true. That's in the book, that's in the interview. It is not some magic thing that you trot out and all of the answers become abundantly clear. I thought the book did a very good job of describing a very, what you might call sort of the leading answer to originalism, a more left leaning judicial philosophy. Purposivism, in other words. Okay, let's look at this Constitution, especially these big sweeping statements like the freedom, you know, no, bridging the freedom of speech. What is due process like? These are big sweeping concepts that are not really fleshed out in detail and in the particulars. And purposivism says, look, they're pointing you in a direction, they're pointing you towards more due process, towards more free speech. And essentially when the tie goes to the runner, the tie is going to go to due process, it's going to go to free speech. And that would be sort of a very broad brush way of describing purposivism. But I'll tell you, when she was describing some of the ways in which originalism can be misused, originalism can become a lot like purposivism, just conservatives interpreting the purpose more than liberals. And so I, I thought that was a remarkable part of the book and what you said, that, that this is not a tool of restraint as she said it. I, I had that same sort of reaction. Interesting. And then as I thought about it for half a second, it was, and she's obviously correct.
- [50:17]
A
I really don't think that even 15 years ago, maybe even 10 years ago, anyone would have agreed with that. Um, it did look like originalism was a tool of judicial restraint. It was, you know, the Scalia having the stamp, dumb, but constitutional. And she talks about that in her book as well, a little bit. This idea that not everything that's bad is unconstitutional, not everything that feels unjust has a legal remedy. Um, and she gives some examples of that that I thought were helpful and just. You can always stand to be reminded of that fact. Right. Something can feel bad and it doesn't mean that there's an answer in law. And that felt like a real point of contention between her and Justice Jackson in the Trump v. Casa injunction case.
- [51:05]
C
Right.
- [51:06]
A
Justice Jackson, I think in a very, I'm very sympathetic to this. I think any normal human would be right. The president is doing something unlawful. There must be a judicial remedy for that. And what you saw from Justice Barrett in particular in that case was, well, that doesn't follow. There may well be a judicial remedy. There may be one later, there may be one now. But we don't just go into this saying someone has done something I don't like. There must be a judicial remedy. And you have Justice Jackson basically saying the Constitution presupposes that, that the separation of powers sort of by definition demands that if one branch is overstepping its authority, there must be a judicial remedy. And I think this gets to like a heart of a problem between the two schools. If you can't agree on who's right on that, I don't see how we move to the next step of what your judicial philosophy even is. And so, yeah, it ties in judicial restraint and originalism and text and tradition. I mean, all of the things are almost tied up in that singular conversation of does every constitutional wrong have a judicial remedy?
- [52:21]
B
Which is going to get us to a conversation that we're going to have next podcast about the Venezuelan boat strike. Does every constitutional wrong have a judicial remedy? So preview for next episode right there. But as soon as you said does every constitutional wrong have a constitutional remedy? One of the first things I thought about was foreign policy. But one thing I want to talk about before we move on to the next thing that really stood out to me about the conversation is it might be worth describing what we mean when we say originalism is not a tool of judicial restraint. So, for example, if you have a very high view of stare decisis, then that is going to be a tool of judicial restraint. You're not going to be rocking the boat. But originalism can conflict with stare decisis. And so if you're going to a perfect example of this would be the Dobbs case, stare decisis, it's a 50 year old precedent. It's been around for a long time. It's been a part of the fabric of American law. Originalism has never liked Roe at all. So judicial restraint would be to place the higher value on stare decisis, the lower value on originalism. An originalist point of view would place the higher a more purely originalist point of view it placed a higher value on the original public meaning and a lower value on stare decisis. So that's one way in which originalism is not a tool of judicial restraint. And sort of just kind of fleshing it out a bit.
- [53:53]
A
But I think for Justice Kavanaugh, and I'm putting all sorts of words in his mouth, and I'm using Justice Kavanaugh as a current stand in for, again, kind of the last 40 years of this project. Remember, you're coming off the Warren Court, where they're finding new rights, like, all over the place. It's like an Easter egg hunt for two year olds. The Easter eggs are very out in the open and they're just like, look at that one, look at that one. And they're putting them in their basket. And the project of judicial conservatism was all about preventing judges from being able to insert their own preferences into the law, their own policy implications. So the death penalty is a good example. You can think that the death penalty is a bad idea. And by the way, we didn't get to this with Justice Barrett, but she does like, if she could vote at her state level, she would vote against the death penalty. But as a judge, she believes that the Eighth Amendment's prohibition on cruel and unusual punishment cannot possibly encompass a prohibition, a constitutional prohibition on the death penalty that would be restraining the judge. Right. Because she would prefer to not have the death penalty. But the Constitution and her originalist reading of it is a tool of restraint preventing her preferred policy outcome from being her judicial opinion. But I think, David, what you and I have been struggling with verbally now for a couple years, and what Justice Barrett was, I think, showing in her book was that because of the way that originalism has evolved, arguably, necessarily, but into this, like, text, history and tradition, type mold or whatever else you want to think about. You know how that works. There's now all sorts of avenues for judges to pour in their policy preferences in the form of historical analogs. We've talked about the level of generality, right? Is it that, you know, the highest level of generality the state exists to protect you against violence? Oh, well, in that case, there were tons of historical analogs. So we can disarm anyone we want for any reason we want, or is it, no, there has to be a domestic violence restraining order in 1785. And so there you can see that it's not going to really act as a tool of judicial restraint when we cannot say what level of generality each amendment or law or whatever needs to be matched with at the founding. I think Justice Kavanaugh would say, like, use your common sense, you dumb dumbs. That is still a tool of judicial restraint. Maybe it's not a perfect one. Maybe it's. It's not a calculator. You don't put in two plus two equals second amendment. That wouldn't work. It would be fourth amendment. But it's better than just vibes theory of judicial philosophy. And I think what Barrett is saying is, like, no, the reason it's the most accurate form of judicial philosophy, not that it's a tool of restraint, because clearly it can be messed around with, Especially because you think it's not giving you a blank check, and so you feel like you're restrained even though you're not. But she has this whole section of the book on Ulysses, Mass tying and all of that stuff. So I don't know. I. Part of what I enjoyed about the book, David, were the contradictions in it a little bit like the thing that we explored about expectations versus intent, or this thing about judicial restraint versus fidelity to the text. It felt like we're gonna need to have another book from her in five, 10 years, because it was sort of remarkable, like, there were loose threads still in this book that I enjoyed. I felt like we were on a journey with her.
- [57:38]
B
I agree with that. And I really, really enjoyed that discussion of originalism because it was so refreshingly honest and transparent about some of the edges and ambiguities in originalism. I really. I really enjoyed that aspect. Aspect of the book. Okay, there's another part of the interview we've got to talk about, and that is we put the question to her that we have been asking a lot about these emergency docket shadow docket cases. And that is, why hasn't the majority written more? Okay. I will say she gave a good defense of it. I'm still not persuaded. I want more writing. But her basic argument was. And you just heard it. Well, when you're writing and you're the majority, as opposed to the dissent, the dissent has more freedom because they're not locking anybody in the majority. Its words are locking in the lower courts. And so they have to be more deliberate. They have to be more careful. These are preliminary proceedings. They're not yet either ready or united enough as a majority to write the very careful locking in majority opinion. Okay, I absolutely get that, and I absolutely understand that. The problem is that these emergency docket decisions still have precedential value, as the supreme court has said at some volume recently. And so that's an interesting line between you don't want to lock in, but there's also precedent. And is the precedent just beyond the judgment of that case that is very narrow and applied to very specific parties and very specific people, or does it extend beyond the judgment of that case? That's where, you know, writing has to come in. But I thought that was an interesting explanation of well, yeah, the dissent can really kind of let fly because it's a dissent. It's not binding anybody. We, on the other hand, if we're in these preliminary proceedings, if we just let fly, we're going to be locking a lot of people in and locking them in on a matter that we have not had full briefing on, not the full proceedings. It's not in the normal course of business. What did you think of that, Sarah?
- [59:53]
A
I mean, we now have an official split in the court on the name of the docket. Justice Kavanaugh is now saying interim docket, which admittedly I've been saying, I believe Professor Goldsmith from Harvard has been saying. And we have Justice Barrett and Justice Kagan now saying emergency docket. And I'm only counting sort of post June of this term, because that's when the naming question really comes to the fore. And frankly, the docket's taking off, whatever it is. There's still a lot of questions, by the way, of what is in that docket versus what is in the merits docket, because it's not actually clear which falls in which category. There are cases that were decided on the so called merits docket that were application cases. That actually has always been the case, but even more so this past term. So like, if we're just going by the website and the R numbers, we call that the merits docket. But then if it's on the part of the website of, you know, opinions relating to orders, we call that the emergency slash, interim docket. Anyway, the literal definitions, let alone the names, are not clear to me or anyone else. This is not an AO problem. This is a like, everyone problem. So we'll put that aside that we're trying to name something that we can't even really define. But yes, everything she said about that, straight into my veins in terms of top fascinating answers. Because, I mean, it's obvious, right? The more you want them to write, the longer that takes. The longer it takes, the more you need some answer to the status quo in the meantime. And then it's interim docket decisions all the way down. What are we going to have the emergency decision before the interim decision? Before the merits decision. Like that doesn't work. At the same time, it's clearly not working to have no decision from the majority and only a dissenting opinion, but then yelling at the judges for not applying precedent. These cases didn't used to be precedential because frankly, David, they didn't exist. We talked about this just a couple episodes ago. These used to be in chambers opinions where one justice was deciding these issues because they weren't very controversial. This is once again, I mean, we asked her like, why this is happening. And she was like, I don't know, we'd need an academic. I'm like, aren't you? You're the academic. What? But I don't think there's much question at this point, David, you can continue asking why, why, why? To this part of it. But like, it is about presidents exerting additional powers through executive orders that they had never tried to assert before. Then someone's like, well, that can't be the rule while it's going through court because it's unconstitutional. And the president says, I'm only here for four years. We're not going to stop this for two years, for half of my term while we decide this. And the court getting caught in the middle of that for the last. Yeah, I mean, 10 years or so.
- [62:53]
B
You threw some red meat out there for Justice Barrett about Congress, because we were talking about, okay, why is this? And the answer, I mean, there's a lot of complicated social, cultural reasons why we're so polarized. But the polarization has yielded a very sort of a simple, straight ahead solution, which is Congress is broken. Presidents are grabbing an enormous amount of authority which is leading that. Which is leading to the only available resistance to that being immediate recourse to the courts rather than Congress acting on its own. So there's a lot there that's downstream from polarization and Congress being broken. And you threw out the is Congress broken? Question. And I thought, as you were doing it, is she gonna take that and critique another branch of government? She declined that opportunity.
- [63:42]
A
Well, David, it was a treat. I feel like in any time you do these interviews, there's so many questions that you don't phrase quite the way you wanted to or that you didn't get to. I wanted my question about potential law school classes to be the text, history and tradition thing. Now that we're doing text, history and tradition, is there some sort of course that you could create to help teach how text, history and tradition can be done, that is teaching history and research into those sort of 18th century statutory questions. But I didn't ask it very well. And so I didn't get an interesting answer. I felt like, no, I know.
- [64:23]
B
It's one of those things where you end it and you're like, oh, I could ask that better. Just like I said earlier about misleading, I realized as I asked it, I thought, oh, that sounds like, you know, some of these early original sloth professors were just like, engaged in a misinformation campaign. I just think it's very. It's a very helpful thing for people to hear Supreme Court Justices speak in their own voice and get a sense for their larger philosophy with judges who are doing what they're supposed to do, which is being very careful about how they answer questions. So they think of it this way. If you were very used to hearing a journalist interview a member of Congress, there's almost an opposite kind of thing going on here because the member of Congress is very eager to tell you exactly where they stand, unless where they stand presents a political problem for them. But part of their job description is, I'm fighting for A, B, C, D, E, F, and G. Like, that's what I'm doing. You put me there to fight for these specific policies. Part of being a judge is I'm not prejudging A, B, C, E, F, and D. And so they are under an absolute imperative to not say anything that indicates prejudging any matter that might come before them. Creates a very different dynamic, very different dynamic that is makes it interesting to listen to a judicial interview compared to a congressional interview and makes it interesting to try to conduct a judicial interview as opposed to, say, a congressional interview.
- [65:51]
A
Well, the book is called Listening to the Law, and it's out today. So go order that. And guess what? We're going to return to normal AO programming on the next episode. As David said, we've got a few things piled up. You know, shooting Venezuelan drug question mark boats, tariffs, all sorts of things piling up on that emergency slash, interim docket that we can't name or define. And plenty of circuit opinions for us to talk about if need be. Plus, David, next week we have a really fascinating book to discuss on whether our entire view of the Constitution is just wrong. What if it's not a Constitution of limited powers, of only enumerated powers? What if it's the opposite? So lots more to look forward to on advisory opinions. We'll talk to you soon. Starting a business can seem like a daunting task unless you have a partner like Shopify. They have the tools you need to start and grow your business. From designing a website to marketing to selling and beyond, Shopify can help with everything you need. There's a reason millions of companies like Mattel, Heinz and Allbirds continue to trust and use them. With Shopify on your side, turn your big business idea into Sign up for your $1 per month trial@shopify.com specialoffer.