Justice Amy Coney Barrett joined me today to discuss her new book “Listening To The Law”

Audio:

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Transcript:

HH: Hope many of you had a chance to see Vice-President Vance on the Salem News Channel earlier or listen to him on the Salem Radio Network or our affiliates. I will talk about that later in the program, but I begin today with Associate Justice of the United States Supreme Court, Justice Amy Coney Barrett who has a brand-new book out, Listening To The Law, which is a fabulous read. And I want to talk to her about that. I had a chance to do so five days ago at the Nixon Library in Yorba Linda, so this is round two. So I get to actually finish my questions. Justice Barrett, thank you for a second bite at the apple. I have to begin, though, by asking. Two hours after I was done talking to you, my colleague, Charlie, was murdered. Your reaction to that and to just generally political discourse in the United States about which you write a lot in Listening To The Law?

ACB: That was horrific. I was at Notre Dame shortly after I left you at the Nixon Library. And the mood on campus was very somber. I mean, for the father of two young children and a husband to be murdered in cold blood was a tragedy and certainly sobering for the nation. And I think it is a sign of a culture that has, where political discourse has soured beyond control and something that we need to really pull back. I mean, obviously, well, I assume that the person who murdered Charlie Kirk was mentally ill. But nonetheless, you know, to create a culture in which political discourse can lead to political violence is unacceptable in the United States.

HH: You know, Justice, you quote your father in the book as saying repeatedly to you and your siblings, control your emotions or they will control you. It’s very similar to a message I got repeatedly growing up. Do you think that message is out of style? Or do parents have to double down on that message?

ACB: I think it’s time to double down on that message. That was a message that, as you say, my father repeatedly gave my siblings and I. It’s one that I’ve repeatedly given my own children, that I’ve put up in various places on index cards around our house to remind them of the message. And I think in political discourse and relating to one another just generally, I think we often let our emotions get out of control, and we’re driven by emotion rather than reason. It can take discipline to speak civilly and collegially to people with whom, you know, one disagrees.

HH: You reference G.K. Chesterton as well and his brother on Page 38 of Listening To The Law. “The two argued incessantly, but never quarreled.” You continue, “A good argument involves logic and a search for truth. A quarrel is an effort to tear down your sparring partner. Sparring with intellectual opponents is the way to hear the other side. Shunning others just because they disagree with you is also a recipe for a lonely and ultimately unhappy life.” Do you think that people are going to hear that message more clearly now?

ACB: I hope so. I mean, I really hope that the assassination of Charlie Kirk is a turning point for us as a society where we look and see where things have come, the point at which we’ve come to in the United States. I mean, there’s a big difference. I see two dangers that that Chesterton passage that you just read gets at. One is to silo ourselves so that we don’t engage with the other side. Now that’s the opposite of what Charlie Kirk did. He consistently engaged the other side. I think the other message in that passage is that when you do engage the other side, we’re engaging ideas, and we’re not trying to attack our tear down people. And there’s a huge difference between the two. And I think those who fall into attacking people primarily do it verbally and not physically. But too often, I guess, we’re now seeing that verbal attacks can spill over into something more sinister.

HH: Justice, now I want to turn to Listening To The Law, and I’m going to come back to the problem of our culture in a moment. But I want to remind our audience that before you joined the 7th Circuit in 2017, you had spent 15 years teaching at the Notre Dame University Law School. Before that, you had clerked on the Supreme Court for Justice Scalia, on the D.C. Circuit for Judge Silberman. You had attended Rhodes College. You worked at Miller Cassidy. You spent your whole early life in New Orleans, and now you’ve been on the Supreme Court for five years. Ought presidents to think, you represent something very different on the Supreme Court – a Southerner, though Louisiana and New Orleans are very different from the rest of the South, and not an Ivy League-trained lawyer. I’m very happy to have the president of the United States, and I mentioned to you this on Wednesday, reaching beyond the Ivy Leagues for justices. Do you hope that continues at least intermittently in the years ahead?

ACB: I do. You know, people have asked me that especially as I’ve been around talking about the book. And it’s not that I think people should be chosen from outside an Ivy League for the sake of doing it, but I think people choose law schools for all kinds of different reasons. To assume that people are unqualified if they choose to apply to schools outside of the Ivy League and choose to attend those schools, I think really distorts and takes people out of the running who make decisions based not solely on prestige, who make decisions based on scholarships and financial aid, who make decisions based on geographic considerations like the locations of their family. I just don’t think we have a culture in which every single person is motivated to apply to and then only attend the top-ranked law school at which they get into. That was not how my own decision process unfolded.

HH: Now Justice Barrett, the very last justices of the Supreme Court that you mention or quote in Listening To The Law is the great Potter Stewart, the great pragmatist. And is it incidental, accidental, or intentional that you quoted him at the end, the justice best known for “I know it when I see it”. But he also said the docket of the Supreme Court is a fairly reliable mirror of our domestic problems confronting our nation. I agree with that, but were you doing something intentional in pointing at Justice Potter Stewart, who was a longtime sort of center-right justice?

ACB: No, and Hugh, I confess that when I quoted that passage, it didn’t occur to me that I might be sending a subtle message. I quoted it because of the quote itself. I think a lot of people think that the Court somehow sets its own agenda or goes out and finds, you know, the most controversial cases to decide. But I think Justice Stewart was absolutely right. If you look at the Court, you see back a reflection of what’s happening in the country.

HH: Listening To The Law is almost Bartlett’s when it comes to quotations about the Constitution and the Supreme Court. You, but however, one that does not include either is John Adams on Ben Franklin. John Adams was very disapproving of Ben Franklin’s style of life. Adams said, “As far as fate shall compel me to sit with him in public affairs, I shall treat him with decency and perfect impartiality.” Then, you add, “There’s no reason to treat colleagues any other way.” I see that breaking down. I try and abide by that myself, but do you see it breaking down?

ACB: I do see that breaking down. And I think it’s, I think it goes back to what you talked about at the beginning, which is learning how to debate ideas and attack ideas, not people. I guess I think the idea or the notion that you can’t like and work with or treat civilly, you know, as John Adams with Ben Franklin, people with whom you disagree or even that you dislike, is just foreign to the way we ought to be conducting public affairs and personal ones. I mean, it kind of goes back to that control your emotions or they’ll control you. I mean, frankly, in every walk of life, you’re not going to like everybody. But you can’t, you’ve got to control your emotions, and you just can’t treat people consistent with the way you sometimes might feel about them.

HH: Well said. Let me go now to some nitty gritty of the law. I brought this up at the Nixon Library. Concurring opinions. We covered this a bit. On Page 39, you explained that you sometimes write concurrences, “to identify areas of law that could benefit from development by advocates and scholars.” And you footnoted that to Fulton V. City of Philadelphia. One of our regular listeners is a now-retired Archbishop of Philadelphia, Chaput, who brought that case. And in that concurrence, you invited scholars to opine on what could replace the test of Employment Division V. Smith, which is a little too geeky for the audience. But then you surprised me at the Library by saying no one had taken up the challenge. Does that happen often? Do scholars avoid the stuff that the justices could profit from?

ACB: I’m waiting, Hugh. After I said that at the Nixon Library, I’m waiting for a deluge of law review reprints from scholars who say I certainly have taken you up on that challenge (laughing). I do, over every summer, try to read scholarship to see what has come up in the interim. I haven’t had time this particular summer to do that with respect to Fulton, so maybe I missed something. I think people respond with scholarship to their interests. It could be that people have not been interested in that case. And I haven’t had another case present that question squarely, so I haven’t had reason to dive in. But I mean, I think if the Court or an individual justice on the Court highlights a particular area as one that would be useful to get more scholarship on, I would think that would be a motivation. It would have been to me as a law professor.

HH: Yeah, I would have thought Judge McConnell would have weighed in, but then he took over the job of chief justice of the Meta Supreme Court. So maybe he hasn’t had the time. But I am surprised, and I hope just by bringing it up here, the 9,000 full-time law professors in the United States give an ear to that, because it’s a difficult issue. It’s a very and important one. I do want to repeat about Abigail Adams, because I found it fascinating in the book that her portrait, and you confirmed it on Wednesday, hangs in our office. Would you tell the audience why they should read, get the full story in Listening To The Law, but why?

ACB: Sure. In brief, you know, the Constitution is obviously a large part of what I do. And because I interpret the Constitution as an originalist, I look back to the founding era a lot. And I wanted some inspiration, some reminder of that in my office. But I also wanted it to come from someone whose life looked at least a little bit like mine, despite the fact of living in a very different age. And there were no women at the Constitutional Convention or any of the state ratifying conventions, so Abigail Adams is about the closest that we can come. You know, she was very involved in advising her husband, John, about public affairs. She was very attentive to all of the affairs of the time. You know, yet she raised a large family, managed her family’s finances, all the while participating to the greatest degree that she could at the time in the formation of the country. So I have her up above the mantel in my office. It would make you dizzy if I picked up the iPad I’m using right now to flip around so you could see that picture, but I reprint it in the book just to remind me of Abigail and her participation in the founding of the Republic, and just to inspire me about the promise of America. Because now, of course, I can do what she could not – serve simultaneously on the Supreme Court and as a mother.

HH: Oh, I’m glad you added that, as a mother. Anyone who has not watched the HBO series Adams from, my gosh, 15 years ago, I would recommend because of its portrayal not only of John Adams, but of Abigail Adams. It’s fabulous. Justice Barrett, we also talked about the founding era. Now the Second Continental Congress passed the Declaration of Independence. And there are parts of it, and you told me why it does not count for you in interpreting originalist intent. But I went back after we talked, and I read it. And for example, in the Bill of Particulars, the Second Continental Congress wrote, “King George has erected a multitude of new offices and sent hither swarms of officers to harass our people, eat our their substance.” That seemed to be one of the examples where the Declaration might, you know, figure into Loper Bright or the Major Questions Doctrine or something like that. Would you explain to people again, as you did at the Library so eloquently, why you do not consider the Declaration as among the founder materials relevant to the interpretation of the Constitution?

ACB: Well, maybe I didn’t explain clearly what I meant by that. I don’t consider the Declaration, I understand some people to make the argument that the Declaration itself is a source of law. And I don’t consider it to be a source of law, because the Declaration of Independence wasn’t ratified as law as our Constitution was. But I do think when you look at the founding era and you look at the array of materials, I mean certainly, I would look at the Declaration of Independence much like I would read Blackstone’s commentaries. I mean, it was part of the political culture in which those who adopted our Constitution were steeped.

HH: Oh, I misunderstood you, then, because that is exactly what I would, I thought that’s what you were going to say, and I didn’t hear it. But that’s on me. I want to go to the very interesting part of Listening To The Law where you add your voice to that of many scholars of the Sedition Act of John Adams’ era was unconstitutional. Good on you. What do you think about Thomas Jefferson’s acquisition of the Louisiana Territory?

ACB: Ah, that’s an interesting point. You know, Thomas Jefferson himself thought his acquisition of the Louisiana Territory was beyond his power. He thought it might be unconstitutional, but he did it anyway, which is an interesting addendum. I mean, I think at this point in the day, and as someone who was born in Louisiana, I’m certainly not advocating for an argument that the Louisiana Territory is not validly part of the United States. I think that’s been settled by time, even if Thomas Jefferson was right to doubt his own Constitutional authority.

HH: Are there other parts of the old law that need to be clarified, such as your comment, “The Court officially repudiated Korematsu,” thank goodness, for the benefit of the lay people out there, the decision of the Court that the internment of Japanese-American citizens was Constitutional at the time has been repudiated by the Supreme Court subsequently. Is there any other clean up on aisle three, you know, the K-Mart green light thing? Does the Supreme Court need to do that?

ACB: You mean overrule precedence or clarify that some past act actually was unconstitutional?

HH: Correct.

ACB: So I can’t, I mean, there’s certainly cases in my own personal capacity or that I might have thought as a law professor were wrongly decided, and then I wished the Court would correct. But just now, in my capacity as a justice, I can’t identify those cases with the same freedom that I could before, because I have to stay my hand in the event that any of those questions actually came before the Court.

HH: Of course, you do.

ACB: Because they would, yeah. I mean, the Court, with respect to the Sedition Acts, the Court has said, the Court itself has said that those were unconstitutional, you know, in New York Times V. Sullivan. You know, the Court acknowledged that, and I think that’s pretty widely-regarded as unconstitutional, so it’s not a controversial question likely to come up before us. So I try to be pretty careful in the book to only, to hew towards describing doctrines that the Court itself, opinions that the Court itself has already expressed.

HH: You also note in the book that the Roberts Court, of which you are a part, that’s a direct quote, averages about one overruling of precedent a term, which is below the historical average for any of the other Courts. And with that in mind, what is your advice to lawyers and litigants about tilting at windmills? When I teach Con Law, I advise my law students, do not waste your client’s time and money unless they’re really interested in tilting at a windmill and trying to go after, for example, New York Times V. Sullivan, because it’s not likely to happen. What’s your advice to lawyers and litigants on that, Justice?

ACB: You know, I think that’s true. And lawyers and litigants, of course, their chances of getting up to the Supreme Court are pretty slim. They’re starting in district courts, and district courts have to abide, because of, you know, vertical stare decisis, they have to follow and apply the decisions of the Supreme Court, and so do the Courts of Appeals. And the lower courts are not going to, and they don’t have the authority to contradict existing Supreme Court precedence. And then there are 4,000 cert petitions filed a year. The Court takes 55 or 60 of those. So you’re really tilting at windmills to spend all the money, litigating it all the way up, and then trying to run through the narrow gate to get on the Court’s docket, that unless you’re pretty certain that you have a case that’s on such shaky ground, and that the Court has signaled would satisfy the high standard for overruling, I mean, I don’t think it’s probably a good expenditure of client’s money to tilt at those windmills.

HH: You know, Justice, it’s been a very busy summer for the Court when it normally isn’t. Your colleague, Justice Gorsuch, who’s been a guest on this program, issued a rather sharp concurrence in an emergency docket case this summer at district courts who are not abiding settled case law. Was this unusual, in your experience of the past five years? And ought it to stop? And do you think it will?

ACB: The emergency docket has been going on. These emergency motions where litigants come to the Supreme Court and seek relief on an interim basis, you know, before litigation has been completed in the courts below. It’s not new to the past six months, but it has definitely accelerated in the last six months. I think it’s a bad way to run a railroad. I’m not sure if it’s unavoidable, and we have to rule on the motions that are filed. We can’t ignore them. So I don’t see a way for the Court itself to extricate itself from this process. You know, how one could stop it and channel this litigation differently, I think, is something that’s beyond, largely beyond the Court’s control. So we have. There’s just been a lot of litigation. There have been a lot of executive orders, and there’s been a lot of litigation, a lot of, many, many injunctions by lower courts, and so that’s just contributed to a state of affairs where we’ve been very busy over the summer.

HH: Now Justice, you went out of your way to make this, Listening To The Law, accessible. And my highly-annotated book here, accessible to non-lawyers, and I appreciate that because people don’t often understand the work of the Court. So I want to cover a couple of things that you said that might be just beyond the grasp of a layman. Page 141-142. “By adopting the Bill of Rights, the founding generation made the Constitution a more morally-laden document. Americans wanted specifics, and they wanted them in writing, promises that the federal government would not violate the rights that Americans considered most sacred.” Morally-laden document. I think I know what that means, but what do you mean to mean by that?

ACB: Well, I think the Bill of Rights, you know, for those in the audience who are not lawyers, the original Constitution dealt only with the structure of the government – set up Congress and the presidency and the judiciary. But it didn’t protect our rights. The Bill of Rights, you know, the 1st Amendment’s guarantee of freedom of speech, for example, was not part of the original document. And the Bill of Rights, certainly those amendments and then many of the amendments that we’ve added since, actually expressed the values and the principles that we as Americans hold dear. That’s what I meant by morally-laden document – one that actually expressed value judgments and didn’t deal simply with the structures of government itself.

HH: Now when I teach fundamental rights, I’m going to be using your commentary on Washington V. Glucksberg, which is a 1997 case, special protection for some fundamental rights that while not mentioned in the United States Constitution are nevertheless, and I’m quoting the case here, not you, though you quote it, “deeply-rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty.” Is that an open-ended invitation to sift through and root about the ratification debates? For example, or among the seven of the eight amendments that were originally proposed by Madison that didn’t make it into the Bill of Rights of the 1992 Ratification of the Long-Dormant Amendment? Would the framers, what do you think? Do those matter?

ACB: Well, let’s see. Washington V. Glucksberg was an attempt to narrow and channel the Court’s activity, and to try to take the Court out of the business of rummaging around in the area of individual rights and to channel that authority so that the Court was not, for lack of a better word, inventing rights or simply plucking out and imposing rights that the justices thought should be valuable, imposing them on the people by incorporating them into the Constitution.

HH: And do you think that that will be a limiting principle on, you know, Judge Bork used to say the 9th Amendment’s an ink blot. And I’m not really in a hurry to open up the Constitution for non-originalists who want to import today’s moral milieu, whatever it might be, whatever they think it is, into the Constitution. Is it the Glucksberg precedent the one you want people to understand? It’s got to be deeply-rooted in history and tradition, really anchored.

ACB: Absolutely, because the Glucksberg precedent is the Court’s latest, and it is the controlling statement of what the Court’s approach is, the methodological approach to interpreting the 14th Amendment’s Due Process clause, which under current doctrine, is the source of unenumerated rights. And by unenumerated rights, I mean those that are not spelled out in the Constitution. You know, in contrast to freedom of speech, those rights like the freedom to marry, which is not expressly mentioned in the Constitution, but under the Glucksberg test, one might say well, that’s deeply-rooted in our history and tradition at the most specific level. So yeah, that’s is, that is what the Court has said is the test.

HH: Now Justice Barrett, the two parts of the Constitution that I think have strayed the furthest from the original intent, the Free Exercise clause, which we’ve already talked about, but also the Takings clause. And do you think the framers, or even the anti-federalists especially, would recognize modern jurisprudence in Village of Euclid? I don’t think they would.

ACB: (laughing) There are a lot of things about our jurisprudence, under the Takings clause and probably, and certainly outside the Takings clause, too, that the founders would not recognize.

HH: Do you call that out as a part of our instructions to clerks? Let’s make sure we call out this area and how it connects back to the framers when you’re giving them instructions on research and direction for the bench memos?

ACB: I do not, because one principle that controls in judging is that precedent applies unless, you know, you and I were talking a few moments ago about stare decisis and whether it’s tilting at windmills for litigants to ask for precedent to be overruled. We certainly have some cases in which we overrule precedent. As you pointed out, on average, one a year. But if we are not expressly considering whether to overrule a precedent, the Court’s practice is to take all of our prior cases as settled and go from there. So I don’t tell clerks to go back and set all the precedent aside and dig down to the original meaning, starting, in other words, from scratch.

HH: Okay. Now this is a subjective question completely. I used to be dazzled at the D.C. Circuit by the quality of the oral argument. I was just amazed at the lawyers. And I’ve only been in the Supreme Court audience on one occasion. Is there a difference in the quality of the Supreme Court bar from the bar at the 7th Circuit or the D.C. Circuit when you were a clerk? Or are they all pretty much five stars?

ACB: If you ever want to come to another argument, Hugh, consider it an open invitation.

HH: Thank you.

ACB: As for the quality of lawyering, I would say there were certainly some fantastic advocates that I saw at the 7th Circuit. But on the whole, you know, I have very rarely seen in my five years on the Court someone who was anything less than an excellent oral argument. The Supreme Court bar tends to be fairly specialized, and so it’s populated with very talented appellate lawyers. And there are so few cases at the Court, so few cases get oral arguments, you know, that there’s a lot of competition among those lawyers to get the cases, as opposed to the 7th Circuit where, you know, we hear many, many, many, many, many oral arguments. And so there are just more lawyers participating in the process, and it’s less specialized.

HH: Would you be willing to opine on this, Justice Barrett? Usually when a Court grants cert, my advice to anyone who’s ever asked, it’s happened a few times over the years, do I go with the lawyer who got me there, or do I go find a specialist? I invariably say go hire Paul Clement if you can, and if you can’t, go hire someone he recommends. Do not take your lawyer from the appellate division. No matter how good they are, how long they’ve stuck with you, or how loyal they’ve been to you and how they’ve let you ride along for free, because it’s a different skill set. Do you agree with me, or do you think you ought to give everyone a shot to go up there?

ACB: Well, let’s see. I think it’s generally pretty high risk, I agree with you, to stick with the lawyer that was with you below, because it is different to practice in front of the Court of Appeals, and certainly in front of a trial court than in the Supreme Court. I’m hesitant to say that you should only consider existing Supreme Court litigators, because then that would make them a closed set, and it would make it hard for anyone else to break in. But I certainly don’t think you should just default to sticking with the lawyer you have. And I think it would be a good idea to ask Paul Clement or any other experienced litigator from the Court if there’s someone that they recommend. I wouldn’t be afraid to give someone a chance. You know, they’re often, because arguments are of such a scarcity, there are often many young, ambitious appellate lawyers willing to take a case pro bono at the Supreme Court simply to get an opportunity to make the argument.

HH: Now I was surprised in Listening To The Law that oral argument can indeed, and has, changed your mind. Do you want to expand on that for people, because I’ve always thought it’s kind of fun for me and other people who follow the law to listen to them, but I wasn’t really sure that it was other than a debating technique for the conference that was going to follow.

ACB: You know, sometimes it does change my mind. I mean, most often, I would say, when oral argument does have an effect on me and kind of moves me from the place that I was when I went into the oral argument having read the briefs and all of the legal authorities, I think it’s most often in the scope of the decision or how the decision is going to be decided. But sometimes, it actually moves me on the bottom line. And I think, you know, it’s a mistake to think of oral argument as just a throwaway.

HH: Now I want to have you argue a little bit with Justice Breyer by remote.

ACB: Okay.

HH: He was on this program when he came out with his book, and we got around to talking about the internet. And his argument was George Washington didn’t know about the internet, and my response was George Washington knew about liberty. What do you make of that exchange, because it’s my favorite exchange, maybe, in 25 years of radio?

ACB: (laughing) Of course, George Washington didn’t know about the internet, and neither did any of the founders. But if we’re thinking about, for example, freedom of speech, that principle applies beyond the pamphleteer. The internet is a way of communicating ideas, and so freedom of speech, and the language, and as you say, this idea of liberty, the freedom that we have to speak and communicate our ideas and argue, applies to the internet just as easily as it does to, you know, the town crier passing out pamphlets in the town square. I think it’s a caricature of originalism to say that we must interpret the Constitution only through the eyes and problems that the founders could foresee.

HH: So Justice, that, we don’t want to talk about the specifics of the murder of Charlie, because it may end up before the Court. But we do have a 1st Amendment regime where you really can’t act against a speaker unless they have the intent to cause violence and the imminent ability to do so. It’s a pretty tenured decision now. As the internet progresses and the deep web becomes darker, and all of these crazy chatrooms develop that we have seen in the news, what do you advise, to the extent that is appropriate to do so, Congress to think about when they think about regulating the web?

ACB: Well, as you say, Congress’ ability to regulate speech is circumscribed by the 1st Amendment. And so the Court has any number of cases. In fact, we had one last term involving the regulation of children’s access to porn, which happens, of course, mostly online. You know, I’m not sure that regulation or legislation is going to be the most effective way to stamp out, just as a policy matter. I don’t know that that’s going to be the most effective way of stamping out some of the cesspool that we have on the dark web and on the internet generally, just because of Congress’ restraint, because it’s constrained by the 1st Amendment.

HH: Let me ask you as a mother, not as a justice. What have you and your husband done about internet access for your children, some of whom are adults now, but I mean, it’s a real deal for my children now that they have children. And I sit in the back saying don’t let anything in the house. Don’t let them have anything, but it’s not really practical.

ACB: It’s one of the most difficult things about parenting in the modern era, I would say. You know, we use screening software that we check. You know, we have parental controls on their phones. We try to have very tight control over the TV. We have time limits on their devices. And it’s still very difficult to keep up with, you know, all of the things that they do online. And you know, my kids are very good. But you know, you can very easily inadvertently wander. So it’s important to be vigilant. We don’t allow them to have social media until we’ve kind of said around 16 as the age. One of my sons recently got Instagram, but the condition was that he read The Anxious Generation with us.

HH: (applauds)

ACB: We watched a documentary together about the effects of social media on teenagers. And then we had to have the discussion about it. And he’s only allowed to be friends on Instagram with people who he knows. And we check, and he has to be friends, I don’t have social media, but my husband has an Instagram account solely for the purpose of tracking what our children are doing online, and he has to allow my husband to be his friend.

HH: Jon Haidt is one of heroes, and I think Governor Youngkin, I’m a member, I’m a citizen of the Commonwealth, has done us a great favor by urging every school in the Commonwealth to ban phones from campus. I don’t think I take you into the shoals of commentary that you may not issue. What do you think of that advice from the Governor?

ACB: Well, the school that my children attend requires them to leave their cellphones in the lockers at the beginning of the day, and they can’t get them back until the end of the day. So if a parent needs to reach a child during the school day, has to do it through the office. And I think that’s excellent advice. I can’t imagine how children can focus on learning if they have access to a cellphone. So I wouldn’t allow my kids to take their phones into schools for that reason just as a parent, speaking as a parent. I think it’s been a very good practice for my children to have that rule.

HH: Now I want to make sure I get to a few things that I did not get to last week in our remaining 12 minutes, Justice Barrett, and thank you again for the time. Listening To The Law is a fabulous book. “The best days are days when joined memos come in quickly without requests for changes.” How often does that happen? And are you every surprised by a justice, a particular justice doing it on a particular case that’s been discussed in conference?

ACB: So joined memos coming in without request for changes, you know, the more complicated a case, the more likely you are to get requests for changes from your colleagues. So I describe in the book one particular occasion in which joined memos came in quickly. And to be clear, I don’t say which case that was, but where joined memos came in particularly quickly. So my law clerks and I popped a bottle of champagne to celebrate once we had everyone in on the case.

HH: I say it’s not often, though. Questions for law students who are out there. If they are not intending to do a clerkship, should they even think about law review?

ACB: I don’t, I think law review teaches some valuable skills. You know, I find, and I found this in practice as a young associate and watching others with whom I worked, it teaches a real attention to deal, and to editing. There’s just, in fact, my husband did clerk, but he helped me. He read chapters of the book, and he was the editor-in-chief of the law review. And all of these years later, he still has such a sharp eye for editing and for grammar, and for, you know, spaces that shouldn’t be in there, and I do think that there’s value to it. I also think it opens the doors. It is for, you know, for better or for worse, it is a gold star on your resume that will open doors to jobs at law firms and other places, because it makes you as a someone who’s a good student and attentive to detail.

HH: Now you can’t choose to become order of the coif. That’s just something that you get. But moot court absorbs a lot of students’ time in enormous amounts. What is the value of that after 15 years in the classroom and almost a decade on the bench now?

ACB: I think moot court, you know, there aren’t that many opportunities in law school to do things that actually mimic what you would do as a lawyer. In moot court, you’re writing briefs and you’re making arguments to a judge, or to a panel of judges. And I think I that’s good practice. You know, I think to allow any particular activity to suck up so much of your time that you don’t have enough time to devote to your classes is a bad idea, but the opportunity to see what it’s like to argue in front of judges and be articulate on your feet, I think, can serve you well in your career.

HH: So Justice, now I want to talk about the 9,000 law professors and the faculties that they make up, and the committees on curriculum on which they serve. There has been quite a lot of change in recent years, but no one is in a hurry to add American history, despite my many urgent suggestions that they do so on this program. What would you delete from the law school curriculums generally? And what would you insist on a 2L or a 3L taking that is not right now required?

ACB: So I taught, for listeners who are unaware of my background, I taught at Notre Dame. I can’t remember if we talked about that earlier. And my experience then is limited to the curriculum at Notre Dame, and I wouldn’t want to offend any of my former colleagues by saying I would cut their class, but I do think that there are certain classes that all students should take. And there’s been a move among law schools to not require classes anymore except for very few. Certainly, the classes that are the traditional first year classes – civil procedure, torts, contracts, the basics, need to be taken. But I think a lot of law schools have added courses in legislation and regulation. I think that’s really valuable, because most of what young lawyers are going to do is deal with statutes and deal with administrative regulations. I know you’ve had Justice Gorsuch on, and certainly he’s written a lot about how many regulations that we have. So I think you need to understand that. I think administrative law really is whether you’re going to do a transactional practice or whether you’re going to litigate, you have to know how to deal with regulations. So I think, and statutory interpretation, that’s something that I taught for a long time and that I still teach. Everybody has to deal with statutes. That’s a very practical skill to know the kinds of arguments to make and know your way around textualism. And we mentioned Justice Breyer, and Justice Breyer’s pragmatist approach. You need to know how to argue before judges who take both different approaches.

HH: You quote Judge Friendly, quoting Justice Frankfurter, the basic rules of statutory interpretation are simple. One, read the statute. Two, read the statute. Three, read the statute. It’s sort of a Breyer V. Barrett over the validity of including how one uses the text. And I think you’re both very, I’d like to see that debate. Do you talk with him as a retired justice with chambers still open, and he’s still working hard? Do you talk with him about these things?

ACB: I do. And actually, we have had that debate. We participated in an event at the Court in front of a group just last year. And we did a discussion, it wasn’t so much a debate as a discussion about textualism versus Justice Breyer’s more pragmatic approach.

HH: I will look for that online. Bravo as well on a succinct, persuasive argument for the ongoing exile of legislative history from Supreme Court decision making. Can you explain to the audience why it doesn’t matter that Senator Cotton says to Senator Graham X is allowed, or that Senator King says to Senator Van Hollen Y is allowed? Why does that not matter to you?

ACB: Well, as a formal matter, the legislative history has not been, has not gone through both houses of Congress and been signed by the president. It is not itself the law. And you know, as a practical matter, it’s just the views of, and your examples say Senator Cotton. It’s not the views of a majority of both houses of Congress, and anybody can say anything they want in legislative history. Often, legislators themselves don’t know what’s in the legislative history. It’s put in by staffers who might have gotten it from interest groups. And sometimes, you know, I talk in the book about an example that I used to use in my statutory interpretation class. Sometimes, it’s a fiction. You know, there are instances in which legislators insert supposed colloquies and dialogues that they have with one another that never actually happened. And they insert them in the record after the fact. So it’s just not a reliable tool apart from the fact that there’s no Constitutional basis for treating it as authoritative.

HH: And does that in fact become even more relevant a consideration the longer back you go in the legislative history, because the legislative history wasn’t all that good, and the records weren’t all that exact in the days of the early congresses. Do we look even more askance, the older the legislative history?

ACB: That’s funny that you ask that question, because there have actually been studies. You know, the Court didn’t really start looking at legislative history until Holy Trinity V. United States, that notorious case. That was one of the first cases that really looked at legislative history in addition to the dubious approach that it took to interpreting statutes at all. It was after that case that legislative history started to balloon. And some scholars have argued that there was a feedback effect that the more the Court cited legislative history, the more Congress created legislative history.

HH: That’s well said.

ACB: That makes it more suspect, in my view.

HH: I want to close, Justice, by getting to the heart of your argument about originalism, which I think is on Page 200. “In my view, departing from the original meaning differs in degree but not in kind from departing from the text outright. The primary difference between originalism and other approaches is that originalists treat historical meaning as determinative, while non-originalists sometimes prioritize other considerations such as purposes or values underlying a Constitutional provision.” Is that the heart of originalism?

ACB: I think it is, yes. I make the point in the book, which I do think is an important one, that all justices, even those who don’t consider themselves originalists, at least on justices to my knowledge, take history into account. So I think sometimes, people who are outside the Court caricature originalism by saying oh, well, you know, crazy originalists consider the history. That’s not so. But originalists do treat the historical meaning of the text where it’s determinative as conclusive, whereas, for example, Justice Breyer in his most recent book makes the argument that well, that’s one thing to consider, but there might be other considerations that would overcome the historical meaning.

HH: So I want to do something, which is to give time back to a justice, not unlike giving time back to a Court. Two minutes. And I want to know when you hear that, I’d like to give time back to the Court, are you happy? Are you sad? Are you surprised?

ACB: You mean when you’ve given time back to me? Or…

HH: No, when someone in the Court…

ACB: (laughing)

HH: When in oral arguments, you know, I’m going to give time back to the Court. Do you like that?

ACB: You know, it happens very, very rarely. I’m trying to remember if it’s happened before the Court…yeah, it’s happened before the Court, and usually, I think that’s a sign of strength, because a lawyer who does that recognizes the strength of his position, and that there’s nothing more to be said, or can read the bench, knows how to read the room and sees that the justices themselves have no further questions. So it’s usually a good thing.

HH: Well, Justice Barrett, thank you again for your time. I will be replaying our Nixon Library conversation. Between the two of them, I will have asked and answered all my questions. Good luck in the term ahead, and I appreciate the time very much. Listening To The Law, a great read for everyone. Thank you, Justice Barrett.

ACB: Thank you, Hugh.

End of interview.