The young justice had much to say. In 1988 and 1989, just a couple of years after President Reagan appointed him to the Supreme Court, Justice Antonin Scalia gave landmark lectures at scattered law schools—then brought the ideas to a slightly bigger audience by publishing them as essays in various law reviews. At just the moment when constitutional originalism was becoming the ascendant philosophy among conservative judges and lawyers, Justice Scalia’s essays laid the intellectual foundation for the new school of thought. Scalia “made the case for originalism in books, articles, and public appearances,” one of his former clerks observed in 2013. “Even apart from opinions,” she added, “justices particularly passionate about their philosophies take them on the road.”
Now that former clerk is doing it herself. For the past two years, Amy Coney Barrett has gone beyond the courthouse, describing the Court’s work at conferences and in the media. In early 2024, she and Justice Sonia Sotomayor appeared together at two conferences to discuss the importance of collegiality, civil disagreement, and civics. More recently, Barrett has been explaining the Court’s work on CBS’s 60 Minutes and Fox News’s Special Report, and at conferences hosted by the Free Press, the Dispatch’s SCOTUSblog, and the Reagan Library. She says even more in her new book, Listening to the Law: Reflections on the Court and Constitution. “I want people to have trust in the Court,” she told CBS’s Norah O’Donnell, “and that’s why I wrote this book, frankly. I wanted people to understand how the Court works. I wanted them to understand how we get our cases and how we go about making our decisions, because the Court belongs to every American.”
She frames the book in three parts—four, really, when you include the brief autobiographical opening chapter. In the first few pages, she brings readers from her upbringing in New Orleans, where she dreamed of being an author or a teacher, to her education at Notre Dame Law and clerkships for Judge Laurence Silberman and Justice Scalia before her return to Notre Dame Law as a professor. We then read of her appointment to the U.S. Court of Appeals for the Seventh Circuit in 2017, and then to the Supreme Court in late 2020, just days before the presidential election. The introduction also gives glimpses of life at home with husband Jesse—a fellow lawyer and Notre Dame alum, to whom she dedicates the book—and their seven children.
For those who might assume that accepting a Supreme Court nomination is a no-brainer, she describes how much she and Jesse struggled with the notion of leaving behind their home, friends, and community in South Bend for an entirely new life in Washington.
She does not belabor the autobiography, nor does she settle scores. Senator Dianne Feinstein’s ham-fisted attack on Barrett’s Catholicism—“the dogma lives loudly within you,” Feinstein notoriously and scandalously declared—gets only an oblique reference, unnamed and unquoted. Instead, Barrett moves quickly to the book’s three main parts: on the Court, on the Constitution, and on how to interpret written laws.
First, she describes the Court’s day-to-day workings. As with her recent public appearances, especially her joint appearances with Sotomayor, there is special emphasis on collegiality. She describes the warm welcomes she received from her colleagues upon joining the Court in 2020. Sotomayor brought bags of Halloween candy for her kids; Justice Brett Kavanaugh, whom she replaced as the junior-most justice, planned a New Orleans–themed welcome dinner. (Two years later, Barrett would plan a Hamilton-inspired, Broadway-style welcome dinner for Justice Ketanji Brown Jackson.) Scalia features prominently here, too. “I attack ideas. I don’t attack people,” she quotes him saying. “And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job. You don’t want to be a judge.” Four pages later, the book reproduces a photo of Scalia riding an elephant with Justice Ruth Bader Ginsburg.
The point is not simply to offer a feel-good story. Rather, Barrett emphasizes that the Supreme Court’s multimember approach makes disagreement inevitable—and not always for the worse. “Consensus in some cases and respectful division in others can both be signs of well-functioning appellate courts,” she emphasizes. And the point goes be-
yond the judiciary: “The success of a multi-member court rides on the ability to disagree respectfully. The success of a democratic society does too.”
She lays out how the justices take up cases, make decisions, and work with clerks, while offering us a tactile sense of how she drafts her opinions: “I typically begin with pen and paper because I write faster that way. … I’m less inclined to be obsessive on a legal pad, and it’s more efficient for me to establish the flow of the argument with a pen before I start typing.”
Listening to the Law concludes with Barrett explaining how actual judges should go about interpreting and applying the actual Constitution and other written laws. We enact written laws because, among other things, “writing enables precision and preservation.” Some of the Constitution’s provisions are clear, precise rules; others are broader, vaguer standards. Obviously, “constitutional standards generate more debate than constitutional rules.”
Barrett recalls how the 22nd Amendment’s two-term limit for presidents was codified in FDR’s aftermath to make an old norm a permanent, binding rule. One might further note (though she doesn’t) that the lawmakers who passed the 22nd Amendment employed a clear-cut numerical rule rather than a foggy standard—one, say, that would have prohibited presidents from “serving an excessive number of terms in office.” The amendment created the kind of rule that leaves no room for political dispute and no room for judicial doubt, except among the worst kind of nihilists.
But not all parts of the Constitution are so clear-cut, and justices should not make the opposite mistake by reading too much precision into provisions that were intentionally left open-ended. “Rigidity and flexibility each have value,” Barrett writes, “and fidelity to the text means that a judge must not try to transform standards into rules or vice versa.”
Some might argue this observation contradicts Scalia’s seminal article, “The Rule of Law as a Law of Rules,” which urges Supreme Court justices to strive to announce clear constitutional rules and not mushy fact-sensitive standards. But that doesn’t get it quite right. Even Scalia himself conceded that “where a particular area is quite susceptible of clear and definite rules, we judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided.” Yet Scalia saw such situations as the exception: “It is rare, however, that even the most vague and general text cannot be given some precise, principled content—and that is indeed the essence of the judicial craft.” Barrett stops short of such confidence.
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Listening to the Law does seem, in a fundamental sense, to be a conversation between Barrett and her late mentor. Sometimes she mentions Scalia explicitly, in fond recollections of her time clerking for him, in warm invocations of his judicial example, and in direct reference to his writings. Other times he seems to appear implicitly, when a particular turn of phrase echoes one of Scalia’s own famous writings.
For example, in her discussion of judicial restraint, she warns that judicial activism and judges who legislate from the bench will inspire actual legislators in the U.S. Senate to ask pointed policy questions during Supreme Court confirmation hearings as a means of predetermining the outcomes of future case decisions—an approach that further politicizes the Court. Scalia made the same point more colorfully in his Planned Parenthood v. Casey dissent when he warned that the Court’s creation of abortion rights would only cause Senate confirmation hearings to “deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.”
Similarly, when Barrett warns that young textualists must take care not to “believe that textualism is context-free literalism” (in a chapter titled “Don’t Take It Literally”), she calls to mind Scalia’s warning that “the good textualist is not a literalist.” Scalia went on to illustrate the point by describing the kinds of “canons and presumptions” that can help to both inform a judge’s analysis and constrain his creativity—though of course a choice among multiple canons and presumptions leaves room for judicial mischief, too. Scalia’s last book, Reading Law (co-written with Bryan Garner), is all about judicial canons of construction and other useful tools for legal interpretation. Barrett takes up the same subject in Listening to the Law, as she should, since her career as a scholar was dedicated to studying the craft of legal interpretation, analyzing various interpretive canons, and probing the relationships between interpreting written laws and applying judicial precedents.
And for precisely that reason, the greatest surprise in Listening to the Law is not in what Barrett says, but what she doesn’t. She offers only a brief discussion of how judges should grapple with the choice between their own interpretation of a law and the weight of precedents that might interpret the law differently. She could have said much more on this subject; she has before. The younger Barrett wrote landmark articles on stare decisis and the courts and, later, grappled squarely with the practical challenge of mixing written laws and judicial precedents in academic papers. Maybe Barrett is showing prudence here by going mostly silent on this central matter, given the weight of her responsibilities on the high court. Or maybe we’ll read about it in her next book.
The most important difference between Scalia’s early speeches and essays and Barrett’s recent speeches and book is the audience for whom they are intended. In the late 1980s, Scalia was writing for lawyers and judges just at the point when they needed a deeper understanding of what good judges do. Barrett is making these arguments in a different register for the broader American public—which suggests that her audience is not conservative judges and lawyers, but the large swaths of Americans who distrust them. It is a valuable effort.
Photo: Mario Tama/Getty Images
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