Loading summary
Transcript104 lines
- [00:00]
A
Hey, Shiloh. Here with an invitation for all my old school listeners. I'm going to be taping a live episode of Old School at the National Constitution center in Philadelphia hosted by the Jack Miller center as part of their National Summit on Civic Education. I'll be sitting down with the incredible historian and Pulitzer Prize winning author Jon Meacham to talk history, leadership and the future of our Republic. Tickets include a reception and a three course dinner before the show. And the best part, listeners get $50 off tickets with code TFP. T like Tim, F like Frank, P like Pam. Don't miss it. Grab your tickets now at the link in the show notes. See you in Philly. Hey y'. All. Today's episode is a little different. In my day job, I'm CEO and president of the George W. Bush Presidential center, where we welcome people from all walks of life who lead through timeless American values. I recently hosted Supreme Court Justice Amy Coney Barrett for a live conversation. We discuss her lifelong love of reading, her confirmation process, the Constitution, and what it should take to amend it and what it actually means to serve on the Supreme Court. We talked about how she approaches cases where her interpretation of the law may differ from her personal beliefs, and why, in her view, a justice's duty is not to deliver political outcomes, but to uphold the rule of law. It's a thoughtful conversation that offers a more nuanced look at the highest court in the land and a reminder that it's often less partisan and more deliberative than people assume. I I hope you enjoy it. This is old school, and here we have an appreciation for old school, quality, craftsmanship, how things used to be made. Today's sponsor is doing exactly that. Vare, that's V A E R was founded in Los Angeles with a mission to revive American Watchman, and they've actually pulled it off. VARE is now the largest independent watch assembler in the US building watches across California, Arizona, Rhode island and Alabama with leather straps made in Illinois and Florida. I absolutely love the watch these guys sent me. It's beautifully made and it feels substantial on my hand. It genuinely lives up to the reputation they've built. Ver has over 10,000 5 star reviews, and once you wear one, you're gonna understand why I get compliments on it all the time. If you're tired of disposable products and want something rugged, timeless, and thoughtfully made, check them out. Go to varwatches.com that's V A E R watches.com and support American craftsmanship. All right, Justice Barrett, thank You so much for being here with us.
- [02:46]
B
It's. Thank you for having me.
- [02:47]
A
It means the world. Let's start, let's go back in time. Let's start at the beginning. Not the total beginning when you were born, but let's go back. Let's go back to college. You were an English major at Rhodes.
- [02:59]
B
I was.
- [03:00]
A
I'm a strong proponent of the liberal arts. We have some undergraduates in the audience tonight. I happen to believe, and I'm gonna get you to defend this for me. Cause people have been looking at me for years telling me I'm crazy. That being an English major is great preparation for, for the Supreme Court. Tell me what you loved about studying English. Tell me about the books that changed your life and tell me how that prepared you for your current job.
- [03:19]
B
Well, I always loved to read. When I was a kid, the library used to have one of those. Read as many books as you can and write them on the card. And once you hit 100, then you would be entered for prizes. And I used to ride my bike back and forth to the library just reading, reading, reading. And when I went to college, I was thinking about history, I was thinking about political science. For a brief moment I actually thought about computer science very briefly. And English just captured me because I thought, oh my gosh, all these years I've loved to read. And I can get a degree in this. I can be reading books and reading literature and writing about it. And that's my college degree. And so I was really just captivated by that. The class that I took that really sealed the deal for me and made me decide this was going to be my major was a class on novels of manners. So it was Edith Wharton and Jane Austen. Actually Truman Capote's Breakfast at Tiffany's was on the syllabus. I loved it. And I loved the professor who taught it.
- [04:17]
A
I love it. I love it. Thank you for that. I've been justified. So speaking of your educational journey, I know you spent a lot of years as a professor at Notre Dame. And when I was reading, listening to the law, it felt like the best civics and history course that I'd ever sat in on. And so I'm wondering, even though you're not teaching in that way anymore, do you miss teaching? And is there a way in which you see yourself on the Supreme Court as a kind of teacher?
- [04:45]
B
Yes, I loved teaching. So I was a full time faculty member for 15 years. And actually ever since I left the full time faculty, I have continued to go back and teach at Least one course. At least one short course a year. So I still kind of keep my finger in teaching a bit, but I do still think that I have a role as a teacher. I feel like conversations like this with you, Shiloh, are an opportunity to educate people about the work of the court. And I've regarded the book that way, too. I mean, I get lots of questions. I say in the book. I get letters from kids. I get letters from people in other countries asking the same general kinds of questions about the court. And it was an opportunity to reach people and explain it in ways, you know, I can't talk to everybody, but write the book.
- [05:31]
A
Sure. So let's now move forward in time a little bit. It's a great book, and it's one that I hope to teach in the future. But I want to move forward to your nomination because, you know, I think you have some practical lessons to teach us about how to make decisions. You were approached about being nominated in 2020. You and your husband had, as I understand it, a pretty short period of time to decide that. You wrote that he was informed support on one condition. You said, if we did it. Maybe he said this. If we did it, we had to burn the boats. Burn the boats? What does that mean? How did you. How did you think about going and burning the boats?
- [06:07]
B
Well, we were pacing around our bedroom back and forth, talking about it. We knew that if we did it, that the confirmation process could be really brutal. I was good friends with Brett Kavanaugh, and I had seen what he had just gone through. We didn't know what would happen. We didn't know what kinds of hardships might arise if I were confirmed and on the court. I mean, it was a movie. I mean, so there was just a lot to think about. And we had about 24 hours, maybe even a little bit less. And Jesse said, listen, if you want to do this, he said, I think this is your decision. I didn't want it to be my decision because it affected him and our kids, too. He said, I think you should do it, and I'm in full support on one condition. Burn the boats. No looking back. It's a military strategy. Alexander the Great is one who is said to have employed it. Where the fleet comes in and you burn the boats so that if the battle gets. Gets hard, there's no way out and there's no turning back. So Jesse said, we don't know what we're going to face, but I just can't do this, and I don't think you will be able to do it if we're constantly looking back and thinking we have an out, we're going to back out, we're going to back out, we do it. This is burned. We're looking forward and we're just going to see it through. And it's actually been a helpful thing to. There have been some hard things that have happened in the course of this and in the course of my last, and it has been helpful. I have thought to myself from time to time, boats burned.
- [07:30]
A
Is that right? I understand that you spoke a minute ago about your confirmation process and of course you had burned the boat. So you had to go through and you had to face this thing, take us into that process. How do you prepare for it? And not just the kind of intellectual challenge, but there's a hardness that's needed to get through something like that, a kind of grit. And I'm just curious, how difficult was that period for you, looking back on it?
- [07:58]
B
Yeah, it was extremely intense. You know, I grew up in New Orleans, so I think about things in hurricane language. This is kind of what it reminded me of. The benefit for me was that it was short. When you have a tropical storm that's out in the Gulf and it's sitting there, the longer it's out there, the more strength it gathers. So the benefit for me was that it was during COVID there was a very short time and so it just went. I think if you have a months long process, the storm can brew, but it was a very intense four weeks. The way that you prepare, you know that you can be asked about anything during the hearing. You're just asked about a wide range of questions about the law, your life, things you've done, and you're just cramming. You wake up every day. And I would go to the White House and they had an office set up for me and I would just read binders and review things and then I had to go meet senators. And so I would meet senators for half the day and then prepare for the other half of the day. Traditionally you get a lot of murder boards where people will pretend to be the Senate Judiciary Committee, various senators on it and ask you questions to give you a chance to practice. But because it was Covid, I was only really able to have one of those. So I don't know if that was good or bad. I mean, I guess I wasn't sick of it. By the time I went in, I hadn't had a whole lot of time to practice. But it did mean that the whole process was Just abbreviated and stressful.
- [09:25]
A
Wow. I have a question for you. I teach a book about your predecessor, Sandra Day O', Connor, and she was confirmed 99 to 0. And the reason it was not 100 was there was some guy was in the hospital or something like that. And I wonder, you know, I tell that to my students, 99 to 0, and they're like, what? There was somebody confirmed 99 to 0.
- [09:44]
B
Justice Scalia was confirmed 98 to 0.
- [09:46]
A
There you go. There you go. That seems not to happen as much anymore, to put it lightly.
- [09:52]
B
I think I might have been. President Bush was asking me this today. I think I might have been 51, 49.
- [09:57]
A
Yeah.
- [09:57]
B
Yeah.
- [09:58]
A
So I guess there you have it. So I guess my question is, why is that, or do you have any sense for what is going on?
- [10:05]
B
Oh, I think that we're just living. And this isn't a news flash. I just think we're living in a very politically divided time, and I think it's harder for people to come together. One thing that I've experienced in Washington is that some senators who voted against me or opposed my nomination and even who were pretty aggressive with me in the hearing room, when you see them outside of that context, couldn't be nicer, couldn't be warmer. I mean, I just think that publicly maybe it's just hard to show support from someone who is perceived to be from the other side.
- [10:42]
A
We can talk a little bit more about polarization later, but I want to get a little bit deeper into your book. There's a really powerful idea at the center of this book, everybody. The Constitution is both the nation's birth certificate and life's work. What do you mean by that? Explain that to us.
- [10:57]
B
Well, the Supreme Court's actually the only one of our federal courts that's created directly by the Constitution. Every other federal court exists because Congress has created it by statute. So the Supreme Court, as really the third branch of government and as the head of the federal judiciary, owes its existence to the Constitution itself. But then it's the Constitution itself that defines everything that the Court does. It shapes the decisions that we make. It defines the extent of our power, just as it defines the extent of the power of the president and of Congress. So it is what I think about. It's what frames my work. It's what frames the work of all my colleagues as well. And I think the way that I think of it is it's what the Court is being charged with carrying on from one generation to the next. You know, it's not Only our job. It's American's job, and it's the job of the other branches, too. But in our particular role, we safeguard it.
- [11:53]
A
So, you know, you talk a lot about how interpreting the Constitution is not easy. And of course, it's not easy. How do you apply the historical context of the Constitution to the modern world in a way that the Framers might not have been able to imagine?
- [12:10]
B
Well, there are lots of things I used to tell my students. When you're thinking about the First Amendment and free speech, do you think James Madison, who drafted the First Amendment, could have imagined the iPad or the Internet, social media? The genius of the Constitution is that by and large, it speaks in broad strokes. So the commitment to free speech, the guarantee of free speech in the First Amendment, protects a principle, and it may not have. At the time of its ratification in 1791, people may not have anticipated it applying to television, radio, the Internet. But that principle of free communication of ideas is one that's not restrained just to pamphlets and newspapers and books. Any medium through which ideas can be communicated falls within that language of that guarantee. And so I don't think any of us, you know, I consider myself an originalist, which means that I interpret the Constitution as it was originally understood. But that does not mean that I ask, how would the framers expect it to apply in this situation? Because that's just a counterfactual that you just keep. You can't think your way into James Madison's mind to ask him what he thinks of Netflix, which would be awesome if you could. It would be awesome if you could.
- [13:29]
A
Yeah. That'd be the first question I asked. What do you think of Netflix? Talk to me about constitutional amendment. You know, there's a lot of folks out there who say it's too hard to amend the Constitution. This should be a lot easier. What's your view about amending this document that we hold? It's like saying, can we amend the Bible? No, you cannot add anything to the Bible. But with the Constitution, we do have a process for amendment. Should it be harder? Should it be easier?
- [13:54]
B
Let's see. So I think it should be. I don't think it should be easy, as in the sense of majority vote. Some state constitutions, it just requires a majority vote in the legislature to amend the Constitution. And I think that that is too low a standard for the United States Constitution, because if we want it to be representative of our enduring and fundamental commitments, I think it has to be the kind of thing that's a little bit hard to Change. Now, there's an argument that it's a little bit too hard to change. Justice Scalia, for whom I clerked, used to say that he thought it was a little too hard to change, and that's what created a lot of pressure on the Court to update it through judicial decisions. And maybe that's true. You know, the Constitution's amendment process in Article 5 was ratified back when we were 13 states. And as the country's gotten bigger, it might be hard to get that kind of buy in. Three fourths of state legislatures are ratifying conventions. That's a high number. But, you know, it's not impossible. And I say in the book that it was actually a University of Texas student, Greg Watson.
- [14:56]
A
This is a great story.
- [14:57]
B
Who was responsible for getting the 27th amendment ratified. He wrote a paper about it. It was actually one of the original amendments proposed by James Madison, and it had to do with congressional salaries, had not been ratified. And he made it his business to get it ratified. He got a C on the paper that he wrote for law school because they thought this was such an outlandish idea. And he was going to show that professor. And he went out and he got it ratified. And the University of Texas retroactively gave him an A. Yeah. Yeah.
- [15:35]
A
Well deserved.
- [15:36]
B
Yeah.
- [15:37]
A
So students don't think your papers are insignificant. Look what happened.
- [15:40]
B
That's right.
- [15:40]
A
Guy wrote a paper and changed the world. You know, you've written a lot about how your personal convictions don't dictate your judicial decisions. And there's so much media chatter about the way Supreme Court justices, personal convictions may or may not affect those decisions. Can you talk about a case or two that's come to the Court where your personal beliefs differed from the law that you're bound to interpret? How do you separate and how do you approach those cases?
- [16:09]
B
That is one of the questions that I get asked most frequently. I actually, in the last week, spoke to three different school groups at the Court, and it came up in each context. I think that it's very, very important to keep personal beliefs and personal convictions separate from the law. Some people say why? I mean, if they're your beliefs and if that's what you think about as true, why would you not let that inform your decisions, Say your beliefs about what's moral or immoral, for example? That is because we live in a pluralistic society. And what I think is moral or immoral is not maybe what you Shiloh think is moral or immoral. And we're committed to living by the laws that emerge from the democratic process. And so it's not my role as a judge to override that with my own view. So I. I try to separate that out. One, I do mind tricks with myself to help that effort because obviously I am human. We all are. My colleagues are, too. Let's say that you have. I'll use free speech again. Let's say that you have some expression, some statement, some speech that has been. There's been an attempt to censor it, and it's a message that I personally find repulsive. In deciding whether I think it deserves First Amendment protection, I substitute in something else, something that I like, because the principle has to be the same no matter what the speech is. Same for different regulations that might be challenged. Maybe they are regulations. Maybe it's an environmental regulation or something like that that I think is a bad idea. I try to switch it up in my mind and say, would this decision be the same if it was a regulation that I actually favored? You know, and vice versa. So I try to do those things to keep myself honest because it is easy, I think, to let your judgment be crowded, or maybe not easy, but I think it would be very tempting to let your judgment be clouded by your own political or personal preferences.
- [18:10]
A
Can you take us into the example? In your book, you talk a little bit about the fact. I mean, it's no secret that you're Catholic. Everything, when you do your job, everything they can find out about you, they find out. But in your book, you talk about a death penalty case, and it's a very, you know, the way you think about that case is pretty interesting. I wonder if you might reflect on that case for a moment, just talk
- [18:29]
B
to people about how you. So I don't normally really say publicly what my beliefs are one way or the other, just because I think I should keep that separate. But my views on the death penalty were on record from this article that I had written long before, when I was actually a law student. I am Catholic. And in this article I expressed that I thought the death penalty was immoral. And the question, and it's actually one, that it was an article that I wrote with a professor. It was explored in the article is what is the obligation of a Catholic judge who thinks that the death penalty is unjust if sitting in a death penalty case. And we concluded in that article, and I think it's true now that it's not immoral to participate. I mean, I'm not saying I'm not the person who's sentencing someone to death. I think the death penalty is immoral. But as I said, we live in a pluralistic society. And many of my fellow citizens don't agree with me. And there are many states and indeed the federal government that continue to have capital punishment. My job is as an appellate judge is to review the record and look at the law and say simply, did this process, did the process of imposing this sentence, did it violate the Constitution? Did it violate the law? And the Constitution doesn't prohibit the death penalty. So the case that I talked about in the book was the Boston Marathon bomber had been sentenced to death. And there was a case up. It was in my first or second term, a case that came up that involved a challenge to his death sentence. And I voted with the government. I voted not to. I did not think that he had the better. Tsarnaev had the better of the argument. That is the kind of situation in which, I mean, that was not a unanimous case. Some of my colleagues in dissent would have decided the case his way. And what I say in the book is it's possible, I think, to say that you should shade the law and say, like, well, you know, there are some decent arguments. It wasn't a slam dunk case. It made it to the Supreme Court. You could say, well, there's some decent arguments going his way. So since I think that the death penalty ought not be used, then maybe I should just try to shade it and go with the arguments that I think are less good arguments but lead to a better result. I personally think that would be, and I'm pretty firm about this, that it would be a dereliction of my duty, because, again, I'm supposed to faithfully interpret the law as I can best judge that law to be. And in that case, I thought that that law permitted the death penalty to be imposed on Tsarnaev.
- [21:06]
A
You know, the media, a lot of the times, frames the Court as Republican. Those Republican judges versus those Democratic judges. You cite some really interesting statistics in your book about how that's really not the story on the Court itself. Very few decisions break down that way. I'm going to read you a paragraph from your book about this. Just about the 2022 term, the court was unanimous in about 47% of its cases in 2022. Unanimous in 47%. That's in line, you say, with the average rate of unanimity over the last decade and significantly above the average percentage of unanimity over the last 75 years, about another 9% were almost unanimous, decided with only a single justice in dissent. So more than Half the cases on the course's docket were decided in total or almost total agreement. In the non unanimous decisions from that term, there were 25 different lineups or combinations of justices. Only five of the court's 58 decisions broke down by party of the appointing president. That's a very different narrative from Republicans versus Democrats when you're talking nearly 60% unanimity and all these different combinations and five of 58. So I'm curious, does the public perception of the polarization of the court bother you? And secondly, how do we change that perception and should we change that perception?
- [22:30]
B
This is a hobby horse of mine. Let's see. Yes, it bothers me because it's not accurate. Criticism of the court doesn't bother me. Criticism of the court's decisions doesn't bother me because I think people should be paying attention and they should be engaged and they should say, I agree with that decision or I don't agree with that decision if they've read it,
- [22:55]
A
which is a big if.
- [22:56]
B
Which is a big if. Which is a big if. I can say something about that in a minute. But the thing about the partisan breakdown is that's just not true. And those same numbers have continued to play out over the ensuing years, but that is not the narrative that's portrayed in the media. And there's also sort of a bait and switch. You have this phenomenon where at the beginning of the term the media will say, here are the cases to watch and they'll list a couple big cases. And then if one of those big cases turns out to be unanimous or turns out to be seven, two, or to have a scramble, all of a sudden it falls out of the narrative. And it wasn't really one of the big cases because then the narrative will be like, well, but all the big cases came out by party of appointed president.
- [23:40]
A
Right? Right.
- [23:41]
B
So it's really a numbers game. And I think you have to read very critically about the court. I think it gets maybe more clicks or more people worked up if the court is portrayed that way, but it's just not consistent with the data.
- [23:56]
A
I want to go back to what you said a moment ago. Do you feel like people opine without having read and that's part of the problem?
- [24:01]
B
Oh, kind of, yeah.
- [24:02]
A
Yeah.
- [24:04]
B
So I was a law professor for a long time and one story that I tell, one year I was teaching constitutional law to second semester, first year law students and I opened the class by going through a litany of high profile, controversial Supreme Court cases like Citizens United and Roe versus Wade and Heller, which is the Second Amendment case. I'm kind of going through all these cases, and after each one, I say, raise your hand if you think that was rightly decided. Raise your hand if you think it was wrongly decided. And I will tell you that almost everybody in that class raised their hands, having an opinion about almost every one of those cases. And then I said, all right, how many of you have read Heller? Maybe like three or four hands go up.
- [24:49]
A
Yeah.
- [24:49]
B
So these were law students. And I said, okay, we are now this semester going to be reading cases, and then we're going to talk about all this at the end of the semester, and then we can talk about if you think the court got it right or wrong after you've read the opinions and you learn how to critique them.
- [25:05]
A
And you said in your book, too, this was interesting to me, that you shouldn't just read the opinion, please do read the opinions, but that it's also educational to listen to oral argument and that you recommend that what is the listening to the oral argument add or enrich? Why do you recommend that in particular?
- [25:21]
B
So the oral argument won't map on exactly to what the opinion is. So, for example, I like to ask hard questions of both sides. So you won't necessarily know how I'm going to vote in a case, but by the kinds of questions I asked at oral argument. But the reason I think it's valuable to listen to oral argument is because it shows what the court's work is about. You are going to hear if you listen to oral argument justices asking questions about the law. My mom and dad came to the case a couple of years ago, which involved Colorado taking President Trump's name off of the ballot. And my mom is not a lawyer. They were so impressed by the argument because it was a highly charged political issue at the time. Right. But the question for us was a legal issue. And all of the questions, my mom said, my goodness, everybody was so prepared. All of this was about law. None of it was about politics or the election. And I think the casual reader about the Supreme Court or its decisions might have the impression that we're just kind of all up there, politicians in robes, and that's not how the court functions. And I think if you listen to some moral arguments, you see what the court's about.
- [26:30]
A
That makes a lot of sense. And didn't you say in Covid, they streamed them or something like that? So for the first time ever, is that you could hear them, or was
- [26:40]
B
that it used to be the case that they were all released at the end of the week. You couldn't listen to them in live. And now in Covid because the court was closed. We still wanted to be open to the public. So. So we did live stream them and then we continued that after Covid ended.
- [26:55]
A
Does that change the way you think about oral argument when they're livestream? I mean, does that affect behavior of justices?
- [27:01]
B
Let's see. Hard for me to say because it was livestreamed from the time I started because I started in the midst of the pandemic. I think what I think is different. I am told obviously. Well, I mean, I don't have an X account or Blue sky account or any social media account whatsoever. But I obviously, if I did, could not be on it during oral argument.
- [27:21]
A
Yeah, good, Very good.
- [27:23]
B
Though it sometimes might pass the time. Right. I am told by my law professor and lawyer friends that during live streamed arguments people will just be kind of posting blow by blows and prognosticating and maybe getting people whipped up while the argument's going on. And that obviously can't happen if the argument is released a little bit later. So I don't know, maybe it changes the way that some of the legal community receives arguments. And I don't know if there's a feedback loop. I never really think about it when I'm asking questions. I don't know if there's some kind of feedback loop otherwise.
- [27:58]
A
Right. That's good. You don't think of it. It doesn't weigh on your mind.
- [28:00]
B
No. What you don't know can't hurt you.
- [28:02]
A
That's right. So you know, one of the things you write eloquently about in the book is that you think the judicial process, it can seem mysterious from the outside, from people who don't quite know how the cases get to the court. And this is where I really felt like you became an educator again. It's why I asked you the question about teaching, because you do teach in a very efficient and engaging way about the way cases get to you. And I wonder if you might just say a word about the journey that a case takes before it finds you. How do they get to you?
- [28:34]
B
Cases start at the trial court level. So if you think about it, the judiciary is like a pyramid. Trial courts on the bottom and then there are some appellate court courts in the middle and then we resolve the cases at the top. When you were reading those statistics before Shiloh mentioned that in some years we'll have an average of between 55 and 60 cases. That's obviously A very, very small fraction of all the cases that federal courts around the country are deciding. So the cases that we take are cases that we have discretionary jurisdictions. So for the most part, not always, but for the most part, we decide what cases to hear and the criteria that we apply try to match our role in the judicial system. We take cases where the lower courts have been divided and they're coming out different ways because as the court of last resort, it's our job to make sure that the law is uniform. We will also take cases that involve really important questions that really need to have the Supreme Court weigh in that can't be left to just one court in one area of the country. But we're not the court of first resort. We're the last in the line.
- [29:41]
A
And the emergency docket, explain what that is.
- [29:44]
B
It's interesting. The emergency docket is probably the most reported on aspect of the court's work right now. At the time I wrote the book, it was there, but I didn't actually devote that much space to it in the book. And the book just came out last year because it wasn't as active, let's say, as it is now. So the emergency docket, some people call it the interim docket. It's a phenomenon that's been around for a long time. It was around when I was clerking, but it primarily dealt with death penalty cases back then. And it was a situation when something comes to us on the emergency docket. It's a case that has not wound its way all the way through litigation that seems still pending in a lower court. But one of the parties comes and says, listen, I have this legal issue. I'm likely to win, but the lower court ruled against me. And just while this litigation is pending, please just stay what the lower court did, just stay its hand to let everything play out. It has always come up occasionally in other contexts, outside of the capital context. But it really, I think it kind of stood started during the Obama administration and then it has accelerated in the years since. There was quite a bit of it in the first Trump and then in the Biden administration and now in the second Trump administration. And what happens is a district court. So that's where the first stop for a case. Let's imagine that somebody challenges an administration policy or a new regulation and the district court and joins it, which means forbids it from being implemented. And it doesn't do that because the case has reached its conclusion. It's called a preliminary injunction. So the court will say, we got to let this play out litigation has just begun. This is just preliminary, but while we're letting this litigation go forward, and litigation can take years, we're going to stop the policy in the meantime. And so then what happens, especially you can imagine if it's like a regulation or some administration initiative, well, the administration was on a clock. So they'll say, well, we were elected on this platform, elected to do this. We only have four years and this is gonna take three and a half years of litigation before we can vindicate our position and get out from under this injunction. Say so what happens is that whoever lost in the trial court then goes to the court of appeals and then often ultimately comes to us and says, listen, we are likely to win. We think that the district court got this wrong. In the meantime, we will suffer what's called in the law irreparable harm. We just can't get back what we lose. The harm that we suffer in this interim from not being able to do whatever the injunction tells us that we can't do. We just can't ever make up that ground again. Will you please give us relief? So there's a four factor test that the court applies and then either grants or denies relief. One thing, if I can communicate one thing to you about the emergency docket, I have discovered in talking to audiences that people think that the emergency docket is just a faster version of our regular merits docket. It's not. So the merits docket is what Shiloh and I were just talking about where we have like the 55 or 60 opinions a year and that's. You have oral argument and the briefs and we write opinions and they go back and forth. These emergency applications that come up are temporary. It's just help us set. It's just to set the status quo while the case keeps going on below so it doesn't resolve anything conclusively. What it says is, okay, this is what the status quo is going to be. We're going to leave things like this because whoever came to us asking for a stay more likely than not. That just means like 55% more likely to win and there will be irreparable harm if the district court got it wrong and this injunction stays in place. So that's that. Sorry, that was a.
- [33:43]
A
No, no, that's good. Thank you. Thank you. And its importance, you're right, has increased since you wrote the book. You know, we talked about how the court is for some Americans, shrouded in mystery. And your book really does try to open the door and shine light on some of those things, you say in the book that the opinions are really the primary work product of the Court. I wonder if you might talk to us about how the process unfolds with respect to who writes the majority opinion, who writes the dissents, and how are those assignments made inside those closed doors.
- [34:17]
B
We go into conference and no one is there at a conference where we decide the cases besides the nine Justices. So there's no assistance, no, no law clerks. We just all sit around the table and we vote, we explain our reasoning, and then the most senior justice who is in the majority of Justices, whose view carries the day on a case and deciding the case, gets to sign that opinion. So if it's the Chief justice, the Chief justice makes the assignment. If it's a Justice Sotomayor, then Justice Sotomayor makes the assignment. And the same is true for the dissent. If there's a group of Justices in dissent, whoever is the most senior justice in dissent will make the assignment of who is going to write the dissenting opinion, and then the judge who's the authoring judge will write out the reasoning. And when I say it's our most important work product, we're the only branch of government that actually has to publish an account of why we did what we did. And it has to be readable and it has to be defensible, which is why I say criticize if you think it's not defensible. If a dissent had the better of the argument, well, then that's great. That's a fair criticism to make. But we try very hard, both majorities and dissents, to lay out our reasoning to show why we reached the result that we did. We exchanged drafts, multiple drafts. I'm writing some opinions right now, and my clerks and I, we'll sometimes go through 60 or 70 drafts before we even circulate it. And then it circulates within the Court, and then people are asking for changes and you're going back and forth. And so there's been a lot of writing and a lot of discussion that goes on before you see the final product, when it's handed down.
- [36:04]
A
Do you? In the book, you say. I think you say this in the book that you often draft with pen and paper before computer, is that right? You still look at the longhand?
- [36:14]
B
I do sometimes do that. And you know what? I'm surprised so many people were struck by that. I guess it really does make me kind of an old timer.
- [36:24]
A
I'm just glad you don't use AI to come up with your opinion.
- [36:27]
B
Oh, no, AI, no, AI, no. I do. When I sit down at a computer, I tend to get obsessive because it's so easy to copy and paste and cut and change. And I'm kind of obsessive about making my sentences perfect. But if I'm just writing in longhand, I can tell myself, well, this isn't the final thing because I'll have my chance to perfect it when I put it into the word program.
- [36:50]
A
Yeah, well, I'm writing a book now, and I'm going to take your advice and write it along with.
- [36:55]
B
I hope it works.
- [36:56]
A
So you clerked for Justice Scalia, who is a towering figure in the court's history, a great justice in my own personal view. Can you talk about the experience that clerking for Justice Scalia had on you as a lawyer, as a thinker, and as a judge?
- [37:10]
B
Justice yes. He was mildly terrifying to work for because he was so darn smart. He was smart and he had a big personality, and he did not coddle his law clerks. I mean, he expected you to rise to the occasion. You had to be prepared. And even if it wasn't your case, I mean, sometimes he would walk in, I'd be sitting at my desk, and he'd start barking out questions at me about one of my co clerk's cases. But that really didn't matter because I was supposed to be a court, to be able to engage with him and go back and forth. He, when we prepare with him, help him prepare for deciding a case or prepare for argument, we'd be sitting, the four of us. He had four law clerks. We'd be sitting in the room with them, and it was like you were an advocate before the court. Because he was wanting to try out arguments on both sides. He didn't want you to just be a yes man, or in my case, a yes woman. I was the only woman in chambers. He wanted you to push back and he wanted you to disagree with him. So it was real. It was a way for me as a young lawyer, to really hone my analytical skills. He was a fantastic writer, so to be able to learn and watch his process, to learn from him was incredible. So it gave me, I think, a window into what it means to be a judge. I mean, those other skills I was just talking about are skills that I employed when I was a practicing lawyer and as a law professor. But now that I'm a judge, I really value the way that he showed me what it meant to. To have a coherent judicial philosophy and then to follow it where it leads in every case to not decide cases just based on kind of each case in isolation and focusing on outcomes he really believed in. Listen, you have an interpretive theory. You have a vision of the law, and to keep yourself consistent, you apply it in every case. And a judge who always likes the results that he reaches is not a very good judge, because if you're honest, you will wind up deciding cases in ways that you don't like, because that's what you decide the law requires.
- [39:10]
A
And he did all of that with a trademark wit and humor.
- [39:13]
B
He did. He was funny. He liked to sing opera style. Yeah, yeah, he was very funny. He liked food. We used to go to this old pizzeria, av Restaurante, which was a complete dive, and he really liked anchovy pizza, and we really did not. But we would pretend at least once. He made us try it at least once.
- [39:36]
A
We have 60 law students in the room. I wonder. And for their sake, I asked this question. What are you looking for in a clerk? What makes a good clerk?
- [39:43]
B
Oh, you know, the obvious things are just to be an excellent writer, to have excellent legal skills, to be able to analyze problems. And once you get up above that floor, I want clerks. It's important to me to have clerks in chambers. I was just saying that Justice Scalia didn't want us to all be yes men. I want my clerks to be able to push back, to challenge me. I don't want them to just give me the answer that they think that I'm going to want to hear, but I want them to do it in a way. Another theme of the book, and it's important to me in all aspects of my life, including my relationships in chambers, is I want them to be collegial, to be civil, to be able to work together not only with one another, but with the other law clerks in the building for. For other chambers. Each justice has four law clerks, and the law clerks work together a lot. We had a bankruptcy case a couple years ago, and I found out that the clerks across all the chambers who were working on it had formed a bankruptcy reading group. And they were all just reading things and discussing to just help them as they were preparing to do their bench memos in the case. So it's important to me to have law clerks who play well with others, so to speak.
- [40:51]
A
I want to talk to you a little bit about motherhood. You have balanced an amazing academic life, and now a life of noble public service with raising seven children. And that's an amazing, amazing fact. And, you know, you've told the story some yourself. When we did our call last week, you were at a lacrosse game, I think, for one of your sons, and you told me you might hear some cheering in the background about my son's lacrosse game, which I think was emblematic in a way, of who you are. So I'm just curious, how have you navigated the demands of motherhood and the demanding jobs that you've had, and how has that shaped your family over the past several years?
- [41:31]
B
Well, Jesse and I. Well, I always preface this by saying I don't know if I've balanced it well. And my kids are not all. I mean, some of them are still at home. The proof will be in the pudding. Hopefully. We've done the best that we can, but we're still a work in progress, probably always will be a work in progress. Jesse and I have. I mean, we prioritize our family and one another and our children over our careers, and we always have. And we have tried to incorporate our children into our lives as much as we can. You know, when I was a law professor, they spent a lot of time at my office, and sometimes they would come sit in my class and they would come eat in the law school and just generally be around. And they did the same at Jesse's office when he was working at a law firm when we lived in Indiana. Now he works remotely, and Jesse works from home, so he's really always around, and I think they can see him working, and they're in and out all the time. So I have always tried to be very present for my kids. I go home for dinner almost every night. And my philosophy has always been every task will expand to the amount of time you give it. And so I have to be very, very efficient with my time because I have a lot to accomplish, a lot of demands on it, all of the demands of the job and then all of demands from the children and the lacrosse games and the helping with homework. So I try to be extremely efficient. I get up pretty early every morning, and I don't know. I mean, you've already said, I'm Catholic. It's no secret. I mean, the prayer that I always have is that the good Lord multiply my time. Like he multiplied the loaves and the fishes.
- [43:09]
A
Very good way to put it. And I imagine, I mean, you know, Thanksgiving dinner at a lot of people's houses is real interesting. I bet Thanksgiving dinner at your house can be real interesting, given that you make these decisions and you've got a big family. I've heard And I'm just curious, how does it go when you're in the room and you've made a decision that some of your family, my children, could
- [43:27]
B
not be less interested, but you've got
- [43:30]
A
sons graduating college and all that.
- [43:32]
B
I do. I do. And so sometimes they will ask me things, and I will say it's not true that they're not interested. Sometimes they will ask, especially if there's an oral argument. If I'm in oral argument, they'll ask me what a case is about at dinner, and I'll tell them what the case was that we heard and what the issue is. Sometimes they forget to follow up when it comes down and find out, like, hey, whatever happened in that case? But we don't. And actually, that's very healthy for me. And I think it's one of the things that really helps me stay grounded and not just get too obsessed with Washington and what's happening in the court building. Because my life at home is really. Look, I'm not called Justice Barrett at home, and my kids, friends call me Mrs. Barrett. And my life. I try to make my life as normal as possible when I am not, you know, at the workplace.
- [44:23]
A
So, you know, one of the ways I think we can kind of dispel some of the misunderstandings about the court is to talk about the friendships that exist inside of it. And, of course, there's the great friendship between Justice Scalia and Ginsburg that folks know about and has been written about there. They are, in fact, on the back of an elephant at one point. And as I mentioned, I teach a book on Justice o', Connor, and she talks about some of the funny stories that she has, the things that happened to her at the court. So I'm curious if you can tell us about collegiality on the court today. Are there special relationships or special things that have happened to you, friendships that you have that might help us see better how you all work together?
- [45:08]
B
I think that collegiality is a decision that you make, and for the law students in the room and. Well, I think for everyone, I always make a point of saying this to law students. You have to make decisions to spend time with people, and particularly people with whom you. You might disagree, in order to forge those bonds, because otherwise they're just the person who was on the other side of an argument that you won or lost. So at the court, we have a number of traditions to try to help with that. We shake hands before we go on the bench. We have lunch together every day of argument, and Conference, and we're not allowed to talk about cases. So that forces us to let that go and to just get to know one another as people. We will sometimes have dinner. Like sometimes one of the Justices will open his or her home to everyone else just so that we can have some recreational off hours time together. I mentioned before that, you know, I knew Justice Kavanaugh, we were friends before I went on the Court. One of the Court's traditions is that the previous most junior justice throws a welcome dinner for the new junior Justice. So Justice Kavanaugh was in charge of mine, and I am from New York Orleans. So we did a New Orleans dinner, complete with jazz music and New Orleans dishes and Mardi Gras masks. It was a lot of fun.
- [46:27]
A
Now, I know that you have written in your book that you have a portrait of Abigail Adams above the fireplace in your chambers. And I just wonder, why is that there? There's the portrait there. And what does that portrait mean to you? What does it remind you of every day?
- [46:44]
B
When you asked me about what did I mean by the Constitution being the Court's birth certificate in life's work? It is. And I think a lot about the Constitution and I think a lot about its framing and its ratification, which happened in the late 18th century. For the original part of the document, I thought, I'd like to have a member of the founding generation up in my office, and all of the people who drafted the Constitution at the Constitutional Convention and who participated in the state ratifying conventions were men. And Abigail Adams is kind of the closest to a founding mother that I think we have. I mean, I don't know if you've read her wonderful letters with John, the exchange of letters. And she participated, I think at some distance, kind of remotely, but through her letters with John, she was intensely interested in the new nation. She was intensely interested in the affairs of state. And she had a large family. He was gone all the time. She had a large family and she managed the farm and their finances and raising their children while still remaining engaged in what was happening in the country. And so I have her portrait up there. And I'll tell you something that I did not say in the book. I initially had the famous Gilbert Stewart. This is just a reprint. And what I had up before was the Gilbert Stuart. It was a reprint of the Gilbert Stewart one where she's at the end of her life, or closer to the end of her life after she had been second lady. And a judge friend was in my office one time and he looked up at me and he said, you know, I know that's the famous one, but she really looks like she's been beaten down by life in that one. And so I thought to myself, well, maybe so. So the one that I have up now is Massachusetts Historical Society. It was when she was a young woman. And so I chose that one rather than the Gilbert Stuart because it shows just the optimism that she had in the very beginning, kind of looking out a life that would be to come.
- [48:47]
A
Let me just ask you a couple lightning round questions and then get you to close on a reflection. But do you have a favorite figure from American history?
- [48:55]
B
Well, I'm going to go with Abigail Adams.
- [48:57]
A
Okay, fair enough. I already asked that one. Second. Favorite figure from American history.
- [49:00]
B
Oh, gosh. John Marshall, who is the great chief justice.
- [49:05]
A
Makes sense. Your favorite TV series.
- [49:09]
B
Oh, I have a lot of favorite TV series. I would say my husband and I really liked the Americans.
- [49:15]
A
Okay. All right. All right. These are on theme. That's good.
- [49:20]
B
America, 250 Shiloh.
- [49:21]
A
Yeah, right. No, I'm hearing it. I get it. Favorite place that you've ever vacationed.
- [49:29]
B
Oh, goodness. Let's see. I will say, not the most glamorous place, but we've gone on a lot of fun vacations with my extended family to Tennessee. So I have very good memories associated with the Smoky Mountains.
- [49:42]
A
All right. And for those of us who aren't from New Orleans, what's the best New Orleans inspired food dish?
- [49:47]
B
The best New Orleans inspired food dish? I think I would say gumbo.
- [49:53]
A
Good choice. And let's close with just a reflection. You know, if there's one thing that every American could understand about the court, something that if they carried it with them, it would strengthen our democracy and make us better, what would that thing be?
- [50:08]
B
I think that the court is. The court is protective of the rule of law. And sometimes protecting the rule of law is not about a result. It's often. That's usually the least important thing in protecting the rule of law, because it is about following the reasoning, where it goes. And so I would encourage you to see the court as an institution that's separate from the political branches that does a different kind of work. And it's not to say that the court is perfect or that it always gets it right, but that it's a different kind of thing that's not just about raw politics.
- [50:45]
A
Well, thank you, Justice Barrett. I want to thank you for coming to the Bush center tonight. It means the world to us to have you here. Thank you.
- [50:53]
B
Thank you for having us.
- [50:54]
A
Thank you.
- [50:55]
B
For having. Me.