Listening to the Law: How Supreme Court Justice Amy Coney Barrett Does Her Job

- How does the Supreme Court do its work? And how does a justice with a family of seven children do hers? Justice Amy Coney Barrett on "Uncommon Knowledge" now. Welcome to "Uncommon Knowledge." I'm Peter Robinson. A native of New Orleans, Justice Amy Coney Barrett is a graduate of Rhodes College and the Notre Dame Law School. After law school, she clerked for US Court of Appeals Judge Laurence Silberman and Supreme Court Justice Antonin Scalia. Then she returned to Notre Dame to spend a decade and a half as a law professor. In 2017, President Trump nominated her to the Seventh Circuit Court of Appeals. And in 2020, President Trump nominated her to the Supreme Court. Justice Barrett's new book, "Listening to the Law: Reflections on the Court and the Constitution." Justice Barrett, thank you for joining us today.

- Thank you for having me.

- We're in the Hoover Institution Offices because the Supreme Court is a limited use because of the government shutdown.

- Yes.

- So thank you for making the trip to us.

- No, no, no, my pleasure. I'm sorry I couldn't host you at the court.

- You've gotten this question over and over again as you've been talking about your book. Seven children, and it's not as if your husband stays at home. He has a big career as a litigator, and litigators are real lawyers. They stand up in court and say, "Objection, your honor." So who made breakfast this morning?

- Oh, cereal.

- Cereal?

- The kids can pour it, yes. One memory that my children have of COVID that they love very much is because we were all home all the time was big breakfasts, hot breakfast, but.

- So the kids make their own?

- Yes. Now our youngest is 13, I mean, he has Downs, so we do make his breakfast, but everybody else gets their own breakfast.

- All right, we'll come back to how you do it. Originalism, "Listening to the Law." "People sometimes describe originalism as a search for the framer's intent. That's a misconception. The goal is not to gaze into the minds of the framers." So if the goal isn't to figure out what the men who wrote the Constitution intended, what is the goal?

- The goal is to figure out how those who ratified the Constitution understood the words. Because we're not governed by what might have been floating around in James Madison's mind when he drafted the Bill of Rights, say. We're governed by the words that the people who actually made this into a law understood themselves to be adopting and ratifying as law. So originalists are looking at words like freedom of speech, establishment of religion, and asking how those words, how those phrases, how those groups of words would've been understood by those who were informed observers at the time.

- All right. Just a few months ago, I spoke with Justice Alito, that was in the Supreme Court. It was before the government shut down. And here's what he himself had to say about the originalist project.

- The whole idea of constitutional theory, which is now a very developed school of thought among constitutional scholars, was not prominent before the originalists came along. There was much less theorizing about how the Constitution should be interpreted. So I do think that the pioneer originalists would say that what they were doing captured the essence of a lot of what happened after the founding and through the 19th century.

- So the phrase that I find arresting there is, "pioneer originalists." Justice Scalia, Justice Thomas, when they joined the court, originalism had to fight to establish itself. Judge Bork, Larry, Judge Silberman for whom you clerked, these were figures who viewed themselves as a kind of participating in a reconquista, kind of reconquest. You are of a different generation. So for you, for Justices Gorsuch and Kavanaugh, when you joined the court, originalism, if I read it correctly, is already in some way, established. Does that give you a certain freedom? Does it affect the way you do your work?

- So I'll make one amendment to what Justice Alito said. I do think that originalism became prominent as a theory and it became self-conscious as a theory at the time that Justice Scalia and some of the early pioneers of originalism, as Justice Alito described them, began writing about it. And Keith Whittington, who is now at Yale Law School, I think has detailed this quite well in his own work on originalism. That when you look back, and Justice Alito did allude to this, when you look back at the 19th century, originalism is what the court was doing in most cases. But it wasn't-

- It never had to defend itself.

- Exactly. And then what happened was the story of originalism is really that in the Warren Court years, and the more the court veered from more traditional tools of constitutional interpretation and became more creative, and the living constitution became kind of the interpretive theory du jour, then originalists had to pause. And if they were gonna criticize what had become dominant in the Warren and Burger Courts as this more living constitutional, they had to articulate, well, what had been going on before? What was the old way and why is it the right way? And I think that's when the pioneer originalists began.

- All right, so you mentioned the Warren Court and the Burger Court, so we're talking about a period from the '50s as Earl Warren becomes chief justice in '54, maybe, first half of the '50s, as I recall.

- Yeah, he was chief, '54 was Brown versus the Board of Education. And Warren was already chief then.

- And then Warren Burger is justice through the early '80s. So we have a period here of three decades.

- [Amy] Yes.

- All right. And so you don't feel yourself... Let's put it this way, it would be easy to think of Justice Scalia as getting up each morning and putting on armor because he was so clearly going to battle to right the wrongs, it's not even wrongs because it's not a question of good and evil, it's mistakes, to correct mistakes that have been taking place for three decades. But are you a warrior? I'm just trying to get a feel for what the-

- Yes.

- At this stage, what does it mean to be an originalist and what does it mean in that court where there are counted, there were five or six of you?

- Yes. No, no, no, no. And that was actually your real question. So thank you for directing me back to that. Yes, I think Justice Scalia was a warrior. And I think at that point, like I said, originalism had not been a self-conscious theory. Now I think of it as second or third generation, depending on how-

- Oh, really?

- You count originalism now. Because I would say that before Justice Scalia, you had Judge Bork. And Judge Bork was really articulating originalism as a kind of original intent. Original, you started by asking me about that. Justice Scalia moved it into original public meaning. And I would say that-

- Firmer ground in your view.

- Firmer ground in my view. And as scholars started thinking more and writing more about originalism as a theory, they picked up on the original public meaning thread. And they kind of moved it from a theory that was focused primarily on judicial restraint to one that was grounded in the Constitution itself. And ideas of popular sovereignty. I said in the beginning, we look at how informed observers understood the law because this is the law they understood themselves to be making, to adopting in the state ratifying conventions, for example. So I would say that was second generation originalism. And I think now as you say, originalism is well established. And I think there are five or six justices who are committed to originalism in some form. Maybe there are some different understandings of it. And now I think that originalism isn't, when Justice Scalia was advocating for originalism, he was often in dissent. And now that originalism is more of a governing theory, you have to figure out how to apply it in some new cases, like think about the Second Amendment, because the Second Amendment had been an area of constitutional law where there had not been much litigation. And now-

- Right to bear arms.

- Yes.

- Right to bear arms.

- Yes, yes, yes. Sorry. Heller and Bruen. And so now that's kind of virgin territory because there's not a lot of case law. And then originalists have to bring tools to bear now and construct this constitutional theory for the first time, or constitutional doctrine, rather, for the first time.

- Originalism established enough now to be attacked from the left and the right. So brace, lean in either direction you'd like, here's the attack from the left first. This is Jill Lepore in the Atlantic this past September in an article titled How Originalism killed the Constitution. Pretty heavy accusation there. Lepore notes that the Constitution has only been amended 27 times. Why? At least in part because of originalists. Instead of addressing their disagreements with the Warren Court by amending the Constitution, conservatives engaged in a long running project, you're smirking already, to take over the court itself. I'm quoting Lepore. "Originalism took hold from the failure of conservatives to change the Constitution by democratic means by means of amendment." Justice Barrett.

- Well, I think amendments dropped off just as living constitutionalism was taking hold. And I think that when you look at the pattern of constitutional amendment, what you see is a shift towards, well, why do we need to amend the Constitution? Because we can go to the Supreme Court to functionally get the amendment we want through case law. And so I think that the general view of most originalists, and I'm kind of, I haven't read the article, but I had heard about it even before you mentioned that to me. I think the conventional view is that the main reason that amendments kind of died out was that the court was doing the work of amendment.

- Right. I wasn't expecting quite that answer, but that's fascinating. Here's "Listening to the Law," you have a passage on amendments. "All US state constitutions have been amended more frequently than the federal Constitution, an average of about 150 times each. The difficulty of the federal amendment process has prompted commentators from across the political spectrum to call for at least a slightly lowered bar. Such a change might be prudent." Close quote. So from the originalist point of view, we on the court are going to take us to the Constitution in its original meaning. You ought to change? You amend it.

- You amend it.

- But amending it is too hard.

- Well, amending it is hard. Justice Scalia used to say that he thought that it should be made easier. And it could be that at the time the Constitution was adopted, we were a smaller and more homogenous country. And so the hurdle wasn't quite as high. And now that the country has gotten bigger and there's more diversity, perhaps that that's what has made the bar so high. But in the course of writing this book, I opened the book with a story about my great-grandmother's house. And I looked at her life just out of curiosity to see how many times the constitution was amended during her lifetime. And now as we're sitting, I'm embarrassed to say, I can't remember the number, but it was like four, maybe five. I mean, so she experienced a lot of amendments and she died in the '60s, in the 1960s. So in her long life-

- Is this one of those places where the law schools could actually do some work, useful work in proposing ways to lower the bar just slightly? I mean, the number of times I've done this show on we need a constitutional convention to amend this or that, the balanced budget. And of course, what happens is that everybody says, "Wait a minute, who knows who's going to turn out at a constitutional convention? Americans don't trust each other enough to have a constitutional convention." It's very hard to work out how you go about following the procedures now in the document to amend the document.

- Well, I think there wouldn't be, let's see. So Congress could propose and Congress has proposed many times various amendments and then they would have to go to state ratifying conventions. So what happened with the ERA is it just didn't pass the hurdle.

- Quite enough states.

- Yeah, not quite enough states ratified it. And so I think the trick at the moment, I mean, we're not at the court because of the government shutdown because we're so bitterly divided. I think the trick at the moment would be if the ERA, if what we saw on the ERA not getting enough states to go over the threshold, it's a little bit difficult for me to imagine right now, just given how polarized our politics are that we could cross that hurdle.

- I see. All right. So, we wait for politics to simmer down a bit.

- Which would be great, wouldn't it?

- [Peter] Which would be great.

- I'm just waiting for the government to reopen.

- That would be great. Originalism attacked from the right. Common good constitutionalism. This is a legal theory that's arisen in conservative circles. And the argument, I'm putting all this crudely.

- Sure.

- There are brilliant minds that work on all of this, but crudely, the purpose of constitutional law is to promote the common good, to promote the common good, not to rely solely on the original meaning of the text. And here is Justice Barrett in an interview earlier this month, quote, "I don't like this common good constitutionalism movement. It feels to me like it's just results-oriented, and I think that it has all the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s." Close quote. In other words, originalists said, "Ah, the liberals are in charge of the court. They're producing one decision after another that moves the country toward the left. All these people wanna do is produce one decision after another that moves us to the right."

- That's crudely put, you're right. I mean, great minds are-

- You're putting in to be crude.

- Yes, yes, yes. Great minds are at work on this. And there are many scholars whom I respect who are developing this theory. But yes, it strikes me as results-oriented constitutional interpretation from the right. Now, I will say that I think there is something to this idea of common good constitutionalism, if you're thinking about it from the legislature's perspective. I mean, I think that our constitution does, I mean, it was enacted to, I mean, it was ratified to allow people to flourish and to promote liberty, right? But the idea, so much of constitutional law boils down to who decides. That's up for the legislature, right? To decide. In most cases, I mean we have the floor of constitutional guarantees. But in most cases, the particulars of that are to be worked out by the legislature.

- Harvard law professor Adrian Vermeule wrote a reply to your comment in an interview in which he quoted Justice Scalia quoting a Latin maxim that translates roughly, "The reason for the law is its soul. When the reason for the law changes, the law changes." And Professor Vermeule writes, "Scalia's point here was not that the consideration of consequences is somehow extra-legal. His point was that such consideration is itself a time honored mode of doing law." Close quote. And I have to admit, I read his Scalia quotation two or three times because it sounded so unlike Justice Scalia to me. But sure enough, Justice Scalia had said what Professor Vermeule said he said. Are you persuaded that there's something here?

- Let's see. So Justice Scalia, and I don't think that considering consequences is off limits. There are certainly areas of the law, for example, the doctrine of stare decisis, where part of the court's task is to consider consequences. And so I believe that Justice Scalia said that, and of course, law should be rational. However, Justice Scalia was asked on many an occasion what he thought of natural law and if he believed in natural law. And Justice Scalia would respond and I don't have a quote at the ready, but Justice Scalia's position on that was, "Yes, I believe in natural law, but no, I do not think it's the job of a judge to advance the natural law. It's the job of a legislature." So I feel, I think I can say pretty confidently now-

- You clerked for the man, you knew what-

- Well so did Adrian Vermeule.

- Oh, he did?

- He did, yes.

- Oh, all right. So draw on that, all right.

- So draw on that. But I think I'm pretty confident that Justice Scalia would not be a fan of common good constitutionalism.

- All right. The law schools. Originalists, depending on how you justices are counted, you're five or six, you're a majority on the court today. But not in law schools as far as I can tell. Not even close in law schools. Again, this is sort of crude, but I have a 2018 paper in the Journal of Legal Studies, "We find that only 15% of law professors are conservative." Close quote. Well conservative isn't the same thing as originalist exactly. But it sure indicates something about the way law schools operate. If originalism has become the dominant mode of interpretation. I mean, Justice Kagan had a narrow application in mind, but she did say during her confirmation hearings, "We're all originalists now." If it has become a dominant mode of interpretation on the highest court in the land, why doesn't it get a little more respect in law schools?

- Well it hasn't been a dominant mode of interpretation in the highest quarter of the land for that long. And so I think things take a while to catch up in law schools. I think there are some progressive originalists, Jack Balkin at Yale is one. There is the-

- [Peter] Progressive originalists that's a new one on.

- Living originalism might be how they would describe themselves. So they believe that the original public meaning of the text controls, but I think it's more of a levels of generality problem. Or, well-

- I see.

- That would be, when I say problem, I mean that would be the pressure point between more mainline originalists, if we wanna say it that way, more traditional originalists and those who take a more living originalism approach. So I think originalism has become a much bigger tent than it was in the '80s when Justice Scalia was first starting out. And I think that has brought it into law schools more. And I think as the court produces more opinions that are grounded in originalist reading, I mean, then they have to make their way into case books and then law professors will have to engage in them with their class. But I think it was certainly the case, even when I was teaching that when I would talk to students from other law schools or you know, faculty friends elsewhere, it was not covered a lot in Con Law.

- Justice Barrett, you stay on that court a good long time and maybe I'll live to see law schools. Start to give originalism a fair shape. You mentioned stare decisis. The doctrine that lower courts are bound by precedent and that even the Supreme Court should prove very, very reluctant to overturn decisions. And even among originalists, views of stare decisis differ. Justice Scalia in a 1997 lecture, he's had just mentioned several precedents that he considered decided incorrectly, quote, "I'm not going to rip all that up. It's water over the dam. That's what stare decisis is all about. In other words, I am an originalist, I am not a nut." Can almost hear him saying that.

- Yes. Yeah.

- Justice Thomas, and this is when I interviewed him, this is just 10 days or so ago. "The Supreme Court is the end of the line. If something is obviously wrong, we should question it and not just go along." Close quote. So on the spectrum of originalists with Justice Scalia on one end and Justice Thomas on the other end, where's Justice Barrett on stare decisis?

- Closer to Justice Scalia.

- Oh, you are?

- I am, yes. I mean, I think so Justice Thomas's point, and I agree with it, is that the ratified text of the Constitution always has to trump. That is the law. But I think the way that you instantiate that can be different. Now, his view is a little bit more nuanced than that because he would say, "You don't overturn precedents unless they're demonstrably wrong." Justice Thomas would say. So it's not just that you think that they're wrong. Sometimes there can be a range of disagreement and he would say like, "Well, if it's in a range, then then maybe stare decisis has a role to play there." But if it's in conflict with the text directly, then Justice Thomas would overrule it. Justice Thomas, I think one area in which he really differs from Justice Scalia in which I would align more with Justice Scalia is Justice Thomas would affirmatively in a case, as he says in the quote that you read, question precedents. If the question is put, when I was a law professor, I wrote an article about letting sleeping dogs lie in stare decisis. If the question is called, that's one thing, then it's front and center in front of the court and the court has to decide, should we overrule this case or not? That's a different thing than if precedents lie in the background of their part of the reasoning. And the court just on its own decides we should examine that. I don't want to decide the case in front of me if there are cases in the background or that are relevant along the way that people might not have challenged in this case. But that might be wrong. I think you let those sleeping dogs look.

- Whereas Justice Thomas might be more willing to dig into the background a little bit.

- Yes.

- So that leads to another, it's often... There is a kind of one rule of jurisprudence is, that if you don't have to decide a matter, you must not decide on a matter. Decide as narrowly as possible. And that fits with a lot of press on the Roberts Court. And in particular, if I'm asking you to put words into somebody else's mouth, stop me. But in particular into the way the press portrays the chief himself, Chief Justice Roberts himself, that he's very eager to hold the court together and he's particularly insistent on deciding on the narrowest possible grounds. Does that sound right?

- Well, I hesitate to-

- is that sensible? I mean, one of the things that's so fascinating about this book, you have a whole passage in here on how decisions get written. And what's remarkable is that it's not nine individual justices seeking after the truth. It's a collaborative process. And you're in and out of each other's offices and your clerks are running around showing decisions to each other, drafts of decisions. And you make the point, you don't get a decision until you get five justices on board. So there's a degree in which the practical considerations, I hate to use the word politics in such close association with the Supreme Court of the United States, but there is a kind of intramural politics going on all the time because it's inevitable. Right? And so I put all that to you. Does it fall to him naturally because he's the chief to try to hold the court together? Does that fall in that position in particular?

- I wouldn't, so I hesitate to say how the chief thinks about it because it's not something that I've talked directly to him about. But I think as that chapter in the book that you're referring to lays out, you're right. If you're not writing, when I was a law professor, I could write these long articles and first of all, they didn't have any impact on the real litigants in a case, right? So they really were just my thoughts and I could say whatever I wanted to say except I only co-authored an article once.

- It's a total freedom.

- Now I'm co-authoring total freedom. Now I'm co-authoring every time I write unless it's a solo separate opinion. And when you have five, six, seven, eight, nine people on an opinion, it's going to be narrower because you have to find the common ground that everybody's willing to sign onto. And generally, I think it's a good thing. And then the chief has said this in public appearances, you know, that he thinks it's a good thing to have fewer separate writings. He think it's a good thing to try to-

- Even fewer concurrencies.

- Hold the, yeah. He doesn't write separate opinions very often. I think it's a good thing to have the court hold together. And so when we can, and if I'm writing an opinion and if I can say, "Well, okay, I'll write this a little bit a different way, I'll drop this point. If it enables you to join, even if I already have five, I will do that." And we all will. We don't stick to our guns unless it's necessary to the reasoning of the opinion. If it's a side point or if there's a way that we can change it to be collegial, to allow someone else to join. It would be the practice of the court to do so.

- I mean, I'm going to say something that sounds trite, but it actually seems to me to be a real finding. That you're not all just nine brilliant intellects, you're nine human beings. You have to get along together.

- AI has not taken our jobs over quite yet.

- You have to get along together or the court just won't work.

- Exactly.

- All right. Dobbs, back to stare decisis. This is probably the most controversial case. The court has decided where it has overruled precedent during your tenure on the court. 2022 abortion case, Dobbs versus Jackson Women's Health Organization. And in Dobbs, this court overruled Roe versus Wade of 1973 and Planned Parenthood versus Casey of 1992. Here's Justice Alito writing for the majority. "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak and far from bringing about a national settlement on the abortion issue, Roe and Casey have deepened division. We hold that Roe and Casey must be overruled." And you joined that majority opinion.

- I did.

- So can we take Roe, which had stood for 49 years and explain why that was an exception to stare decisis.

- So I mentioned before that Justice Thomas applies this demonstrably wrong standard. And egregiously wrong is, well, yeah, actually it's an even higher standard than just demonstrably wrong. But when you're considering whether to overrule a precedent, the point of stare decisis is to create some stability in the law. So that it's not a new day every day that people can rely on it. So a case can't just be wrong or can't just be wrong in the opinion of Amy Barrett, but if it's egregiously wrong in ways that have left the law unsettled or have had other bad consequences, back to consequences. They're not off limits in stare decisis. And justice-

- It never become settled.

- It had never become settled.

- And that requires the court just to look at American politics.

- Yes, and one thing about Roe, Roe, even by legal scholars who were themselves pro-choice.

- Justice Ginsburg.

- Justice Ginsburg thought that Roe had moved too far too fast. And, you know, John Hart Ely, who Justice Alito quotes as an opinion was a famous constitutional law scholar. A pro-choice scholar, wrote criticizing Roe at the time as just having no basis in the Constitution. So I think Roe was widely regarded as an ill-reasoned decision. And it just came up with this trimester framework. I mean, where was that in the Constitution? I mean, it really-

- Made it up.

- Yeah. It did feel very made up. And it was very, very hard to defend from the perspective of any kind of constitutional theory. And it's Justice Ginsburg's saying it went too far too fast. Highlights, I mean, Roe was way ahead of where the country was in abortion at the time too. Casey was a morality opinion 1992. So in Casey, this is the first time the court is really squarely dealing with should Roe be overturned. And in Casey, a plurality of Justice Kennedy, Justice Souter and Justice O'Connor declines to overrule Roe. They never said Roe was right. They never said Roe was rightly decided. The plurality opinion was about stare decisis. And in that plurality opinion, there is a passage that says it's time to just treat this as settled and call the contending sides of this national controversy together to end this division. And I think that at the time, what the plurality thought when it declined to overruling Casey was that Roe was wrong. It was wrongly decided, it was poorly reasoned. However, it was a precedent and it was just gonna cause upheaval to overrule it. And that if the court said, "We're not gonna overrule Roe," then the temperature would come down on the abortion debate. But that didn't happen. Years later, by the time we got to Dobbs, the court is constantly still from Casey up having all of these cases challenging various abortion regulations. The national temperature had not been decreased after Casey. And so Casey's hope that it would end this national division by just saying this is settled really had not come to light. And so the law was unsettled, it had caused division.

- So Casey was a real catastrophe then because the plurality made a political rather than a legal discall and they got the call wrong.

- Judges aren't very good at making political calls. So that is one. "Listening to the Law," Peter. That is one thing, yes. I am in law, not politics.

- All right. So, still on Dobbs, just one more question because this comes up again and again. The so-called reliance interest. It had been around for, Roe had been decided 49 years earlier. And the argument is that reliance, well, I'll let you handle the answer, I'll just ask the question. But the notion is that people had arranged their lives around Roe, millions of women in particular had arranged their lives and made life decisions based on Roe. And somehow or other, that reliance interest that people had gotten used to it should have been given greater weight by the court. How?

- Yes. Well, I mean it's certainly the case that people were used to Roe. It's certainly the case that it had been around for, as you say, about 50 years. So that is certainly true. But what reliance means for star decisis is something narrower than that. And something very specific. I mean, the classic examples of reliance interest for purposes of stare decisis, if we wanna just go back and look at stare decisis roots are property and contract. You know, you buy a house and then all of a sudden, the court in your state changes the rules and then you have lost title to your home. I mean, it's a very specific, it's not just this has been in the ether, this is in the air. I liked this and I thought I could count on it because that would apply to many, many, many precedents. And the premise of star decisis, I mean, I'm unaware of any justice who has ever said that precedent should be never overruled. Everyone thinks precedent should be overruled. Sometimes, the court is a human institution. We make errors. And if you were not able to overrule, even if cases had been around for a long time, Plessy versus Ferguson as an example, overruled by Brown versus the Board of Education. We would be stuck with these errors. The kind of reliance Justice Alito makes this point. And some of the dissenters and Casey had made this point that the real reliance interest in the abortion context is for women who are pregnant. The real reliance interest, if you look at reliance in that narrow sense-

- The technical legal sense.

- In the technical legal sense is that, but I don't wanna downplay at all that there is true. I mean, it was disruptive. I mean, Dobbs was disruptive. It threw it back to the states. And abortion had not been something that states could really legislate much about.

- By the way, this notion, the other criticism is that Dobbs somehow represented an assault on democracy but in fact it expanded what we could decide democratically, didn't it?

- Yes. That was part of the-

- Exactly wrong.

- Yeah, that was part of the point because when the court, and this is part of my disagreement with the report quote that you read me, when the court says that something is constitutionally protected, it inhibits the law making process. And then legislatures are then hemmed in. So they can't legislate on that topic. They can't regulate. So what Dobbs did is say, "This is not a pro-life or a pro-choice decision. We're not taking a position on whether abortion is, you know, a good social good or a social ill. We're just throwing it to the democratic process." And we've seen that play out across the states, many of whom have amended their constitutions to address abortion.

- Right. I'd like to get at the court in the larger context of other institutions, and while we're still on Dobbs, the press, Dobbs prompted just a cascade of criticism. Here's the New York Times that published an editorial with the headline, "The ruling is an insult to women and the judicial system." And by the way, as I read that editorial, I found not a single word of legal reasoning. Even the New York Times assumed in the way it wrote that editorial, that it was the job of the court to pay attention only to consequences. So in "Listening to the Law," you write this, "Contentious cases impose pressure because of the mismatch between the desires of the public and the duty of the justices. The public cares much more about the result than the reasoning, yet the justices must decide every case based on the reasoning rather than the result." Close quote. So when all of the mainstream American journalism, I repeat, the New York Times behaved as if it was your job to concern yourself only with results. When all of mainstream journalism gets it wrong, when it misrepresents the role of the court, what can you do? What can the court do?

- Write a book.

- But don't have any big PR department, you're not?

- No, we can't. I mean, and we can't speak. I mean, and I think it is up to, I mean, I am a big believer in civics education and part of the point in writing the book was to try to educate people about how the court works. I use an example in the book about my brother-in-law reading the Dobbs opinions, because I do always say, yes. We went on a family vacation with all my siblings and nieces, nephews, my parents. And it was the summer after Dobbs was decided. It was July, Dobbs came down in June. And he walked into family vacation with this thick, all the printouts he had printed out. Dobbs-

- The last thing you wanted to see.

- I did not wanna talk about Dobbs, but he said, "You always say read the opinion. So I'm reading the opinion." And he read all of the separate opinions. And then after that he read Roe. He's not a lawyer because he wanted to see what it was that Dobbs was responding to. And his reaction as a non-lawyer was much like yours. "Well, I don't understand this because I see the legal argument here, but there's a disconnect in the way that it's being talked about." Just in the popular press and among friends and acquaintances, it's either this is so great, you know, the court has reached the result I like, or the court has disrespected women. I mean, because on both sides people saw it in terms of-

- So in the end, that family vacation went all right

- In the end, that family vacation went all right.

- Some of the issues before the court. Now, I stipulate that if I ask something that I'm not allowed to ask, because protocols are very strict. You a sitting justice, you may not comment on matters before the court. What I'm hoping for is to frame issues and just watch a justice. I'd like a little seminar on how to think about the issues involved in a couple of cases, excuse me, with regard to a couple of issues, not specific cases. So if I may, and you correct the question if you need to.

- Sure.

- So national injunctions in the emergency docket, on the one hand, it cannot be the case that any president of the United States gets to rule by executive order, unchallenged executive order. We can't have a president who rules by Dictat. On the other hand, we have over 670 district court judges and it cannot be the case that each of those judges gets to issue a national injunction. It would be a one person veto like the old Polish Parliament. It would make no sense at all. So how do we think about these, that waiting problem?

- So the case, CASA, which I assume you're talking about and that one the court held-

- See I didn't even mention the case, you mentioned that.

- Well, I can talk about it if it's already decided.

- All right, all right.

- So I can talk just like I was talking about Dobbs.

- Okay. All right.

- I can talk about CASA because that one's already decided. Yeah, the court held that the question before us wasn't about the executive order addressing birthright citizenship. The question before us was about a court's power, the district judge's power to enter a national injunction that as you say, one judge could stop a policy nationwide. And that was a statutory question about whether a statute dating back to the Judiciary Act of 1789 granted judges that power. We get our power from a combination of the Constitution and Congress. And what the court said was this is outside, this is beyond the power. District courts can act, federal courts can act on the parties before them.

- Right.

- And if a district court enjoins a statute or some sort of executive policy nationwide, it's reached far beyond the power that was granted by this statute, which is to deal with the parties in front of them. So a court can enjoin a statute or some sort of executive regulation, executive law, like administrative action for the parties in front of it. Like that you can't apply this birthright citizenship order to the plaintiff in this case, but not for everyone else. The question of the legality of that order wasn't before us, although the solicitor general there told us that it will come before us at some point. And so that's a separate question. But the fact, and this was a little bit of back and forth that I had with one of the dissents in that case, the fact that even if you assume that the executive order was unlawful, it's like, fighting fire with fire isn't the way to approach it because courts need to stay in their lane too. So the whole system will just crumble if we're gonna fight fire with fire approach. You can't criticize one branch for being outside of its lane by veering outside of your lane to take it down.

- Got it, got it. The executive and independent agencies. Here, again, there's on the one hand, on the other hand, or at least I'll frame it that way. On the one hand, the constitution vests all executive power in the president. On the other hand, we have a long history of Congress for reasons that strike me as compelling, wanting to protect agencies from political influence or from direct executive power. So how do we balance that, this notion of independent agencies versus the constitutional structure or framework.

- Okay, that one probably does veer in. Because that's really about whether the vision of the court in the New Deal era in Humphrey's Executor, which addresses independent agencies and now that question is coming back before the court.

- Oh, I was trying to tiptoe but I did step apart.

- It's hard, it's hard to tiptoe with that one.

- All right, so another interview after?

- Sure.

- If you do decide.

- Once the case is decided.

- All right, terrific. Major questions doctrine.

- Okay.

- All right. "Listening to the Law." 'When an administrative agency seeks to exert power of and hear you're quoting 'vast economic and political significance,'" close quote, "the court looks for a clear congressional statement granting such vast authority. The absence of such a statement is reason for the court to doubt that Congress empowered the agency to settle such a major question rather than retaining the authority for itself." Close quote. That seems clear. Now here's the bit where I'm going to be slightly mischievous. You note here that the major questions doctrine was part of the reason the court rejected President Biden's student loan cancellation. So does that mean that in one way or another the major questions doctrine applies to executive even presidential decisions?

- You mean as opposed to just agency?

- It's something happening down at the lower at the agency level.

- Well, I think there are, and I will say competing views on the court about what the major questions doctrine is. So Justice Gorsuch has grounds it more as a constitutional, as a canon of interpretation that would be grounded in the Constitution. I consider it more as in that passage you read, more a way to read language. If we're gonna understand language in the statutory context as an informed observer would, would an informed observer who's just reading that portion of the statute waive or modify was the relevant language in that student loans context. But it was waiver or modified, not the loans themselves, waive or modify statutory provisions, some provisions of the law in the case of an emergency. It was very hard to see how an ordinary person looking at that language would have understood it to grant this vast authority. So I view it as more of what we might say a linguistic interpretive principle. So I would say there not everybody on the court is of one mind about what-

- Even among originals.

- Questions. Right. And major questions doctrine is really more a matter of statutory interpretation than constitutional interpretation. It's one that applies when we're interpreting statutes rather than when we're interpreting constitutional provisions.

- All right, it's fascinating. It's so interesting to hear this because there are bits on which you are all still working to sort things out and there are bits on which, oh yes, we've got that figured out, it feels.

- Well, I think there might be some things in which we just never agree. I mean, I think sometimes people say, well there's this monolith of the court and you know, these particular justices all subscribe to originalism, so they must think about things the same way. And we don't. I mean, I think I just think about the major questions doctrine differently from some of my colleagues and I don't know that, maybe they'll persuade me and maybe I'll change my mind. You know, stare decisis, Justice Scalia and Justice Thomas disagreed about stare decisis. They were for a long time, yeah. So I don't know that it's because it's in the stages of being worked out. I think it's just because there are some contestable things in law and people disagree.

- All right. Race.

- Just getting all the easy ones, Peter.

- Yeah, exactly. 14th Amendment 1868 guarantees equal protection of the laws and due process to all persons. And that sounds like colorblindness. Here's Justice Thomas in his concurring opinion in the 2023 case, Students for Fair Admissions versus Harvard. "I write to offer an originalist defense of the colorblind constitution. I hold out enduring hope that this country will live up to its principles that all men must be treated equally before the law." And then we have the 15th amendment of 1870 declaring that the right to vote could not be denied on account of race, color, or previous condition of servitude. And there's race awareness or race consciousness right there in the text. And here's Justice Sotomayor in her dissent from Students for Fair Admissions. "The court long ago concluded that the guarantee of racial equality can be enforced through race conscious means in a society that is not and has never been colorblind." Close quote. So, it feels to me as if you take the long sweep of American history and indeed constitutional history, Civil War, the amendments after the Civil War, civil rights movement, and then the court becomes queasier and queasier. You go from Bakke to Grutter and Sandra Day O'Connor, Justice O'Connor and Grutter says, "Well, all right, you may make some admissions decisions based on race, but we hope that this is no longer necessary in 25 years." And then comes Student for Fair Admissions. And the chief writing for the majority says, "That's it. You are not allowed to make distinctions based on race anymore." And then along come there are going to be for sure that's going to continue to produce cases, at least to my mind, that there's going to be this, that or the other university is gonna try this backdoor or that loophole. And then we've got, forgive me because I know that the gerrymandering question, but we've got it right in the Constitution, in these two thrilling post-Civil War amendments. One says in effect, as I read it, colorblind. "We're not allowed to make distinctions among our fellow citizens based on race." And the other one passed just a couple of years later says, "Well, from time to time we're gonna have to take color and race into account."

- Don't you think the 15th Amendment is saying that you get the right to vote regardless of race?

- You just settled it onto the next question.

- Let's see, I don't read the 15th Amendment as being in conflict with the 14th, but I do think it's the case.

- But don't you think, excuse me, I'm sorry, I don't wanna, but doesn't that feel, sorry to interrupt.

- No, no, no.

- That's the worst thing a lawyer can do whenever.

- No, absolutely not.

- But Justice Sotomayor seems to be using, it's just that way, it feels to me as the justice Sotomayor sort of wants to use the 15th Amendment as a way of saying, "Wait, wait, wait, it's right there. We get to use race from time to time." No?

- Well, let's see. I disagree with that, but what I do agree with Justice Sotomayor on is that it is true that we have permitted over time, race conscious remedies.

- Yes.

- But in particular cases. So when there has been evidence of discrimination, the 14th Amendment, section five of the 14th Amendment gives congress enforcement authority. Power to enforce the guarantees of the equal protection clause if a state violates them. So for example, if in the South, during reconstruction, I'm just using this because it's not something that will come before me, had a pattern of discrimination on the basis of race, for example, there could be race conscious measures put in as a remedy in that particular case to make, I won't pick on any particular states, but to make, state X stop doing that. The same thing happens in the private context. If someone has discriminated on the basis of race, the remedy can be race conscious to make them stop discriminating on the basis of race because you correct the wrong with the wrong. The difference with affirmative action is it's not in response to any particular violation on the part of any particular state on the part of any particular person. It was a much vaguer principle that the dissent was arguing for in that case.

- So again, if I'm getting too close to cases now before the court shut me down, but does that get to the notion of disparate impact? The idea that one may impute discrimination to a policy that produces different results among different racial or ethnic groups, even when it's impossible to demonstrate any in discriminatory intention? That's roughly what disparate impacts means, right?

- Roughly what disparate impact means, but the 14th Amendment doesn't... That's a complicated area of the law. There is a debate for a long time about whether 14th Amendment would reach it, but the 14th Amendment is really much more about intentional discrimination, not disparate impact.

- All right. So am am I allowed to read you a couple sentences from President Trump's executive order on disparate impact?

- You can read them.

- All right.

- I may not answer that, whatever question it is.

- This is from President Trump's executive order last April. "Disparate impact liability all but requires individuals and businesses to consider and engage in racial balancing to avoid potentially crippling legal liability. It not only undermines our national values, but also runs contrary to equal protection under the law and therefore violates our constitution." Close quote. Do I dare ask you to comment on that? Is that generally in comportment with the a correct reading of the Constitution?

- So I won't, I didn't know about that executive order. I have no idea if it will come before us. So I will comment on the specifics. But one just broad observation that I will make is that the 14th Amendment, like most of the Constitution, applies only to state actors. So it applies only to the government. So there's a reason why Grutter or Fisher, those were state universities, University of Texas, University of Michigan. So private employers, private people, with the exception of the 13th Amendment, which makes unlawful slavery, that applies to private people. But the rest of the constitution applies only to state action. So you can, I always tell my children, you don't have any free speech rights in this house because I'm not a state. Well, I guess I am a state actor, this was something I used to say before. but in the Barrett House, the First Amendment doesn't apply.

- Okay. So this gets us back to the question of questions, which is, here you sit poised, articulate, as completely relaxed as any guest I have ever had on this show. At home, well you have four children still at home. Your husband is probably standing up in some court of law someplace objecting to this, that or the other. You don't look like one half of a power couple. How do you do it? If I recall the story correctly, you have five biological children, and then you and your husband adopted two kids from Haiti. I mean, the sense of space in your life to raise children is expansive. I mean, it's heroic. How do you do this?

- Well, I don't know that I would describe it as heroic, but-

- I'll describe it as heroic. You just have to live with it.

- You know, we wanted a big family. That was our priority. And we had jobs when our children were younger. The hardest part was when all of the kids were really little.

- [Peter] Sure.

- And back then we were living in South Bend, which was a more manageable town. I was a law professor with a flexible schedule. I could work from home, I could work at night when I was writing. We had great childcare. You know, we had a family member who was our nanny. So our kids were very well cared for. And I think had we lived, had we had different jobs then, or lived in a different city at that point, we wouldn't have been able to do it. But what I tell people when they ask me now is, well, our kids aren't all two years old. We don't have seven, two-year-olds at the same time. I mean, they're spread out in age. So we do have four still at home who are in high school and middle school, but my oldest is now 24. So that helps. My husband and I were both traveling last week and our 24-year-old came and stayed with the younger siblings. Well, I was gone. So as they get older, the older ones help and they're all also close. I really love seeing their friendships. I feel like each other, giving them each other is the biggest gift we could have given any one of them.

- You know, you make it sound easy and I'm going to have to say, I'm not sure I believe it could have been quite as easy as you-

- Oh no, it wasn't easy. It was very, very, it was very, very hard and very, very intense especially when the kids were little.

- Justice Scalia. "I served as Justice Scalia's law clerk. A job that entailed helping him to prepare for oral arguments, researching legal issues and preparing draft opinions. Because Justice Scalia didn't need much assistance in any of these tasks, the clerks were only marginally useful to him, but our time with him was invaluable to us." Give us an Antonin Scalia anecdote. He was such a vivid figure. Wasn't he so alive?

- Very vivid figure. He would come in and he would we could hear him, I say in the book, we could hear him singing in his office. He was funny. You know, we would go out to lunch. He loved AV Ristorante, which was a dive, an Italian dive. Had you ever eaten there before?

- I did, sure.

- Yes. You know, and you would order wine with lunch and you know, he would offer it to us. And we were thinking like, "We've gotta go back to work and write bench memos and draft opinions." He liked his pizza with anchovies. He could write, he used to say, and I have to remind myself of this sometimes 'cause he was such a good writer. People would say, "Well, do you like to write?" And he would say, "I don't enjoy writing. I like having written." And so I often remind myself of that when I'm in the throes of trying to get some phrasing and an opinion exactly right.

- So in "Listening to the Law," again, you described the court as a human institution. We talked about that. That is some of the most fascinating passages in here to me, touch on how collaborative the institution is. Okay, so after the leak of the Dobbs decision in 2022, Justice Thomas said in an interview, "We've never had a document leak before. We may have been a dysfunctional family, but we were a family. You trusted each other, you laughed together. You went to lunch together every day." But that's gone. And in your Trump versus CASA opinion, you yourself included what has been read as fairly sharp language toward a colleague quote quoting you, "We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries' worth of precedent, not to mention the constitution itself." That is a comment worthy of Justice Scalia I might say. So all nine of you are strong-willed on issue after issue. You disagree with each other sometimes profoundly. I have seen the conference table and it's not any bigger than an ordinary dining table. You are seated right with each other.

- [Amy] Yes.

- How do you all get along? How do you make this thing work?

- Well, I'll use my interchange with Justice Jackson as an example since that one was mine. Some people have said, well, "Why did you use her name?" That was so pointed. And it was about the ideas, not about Justice Jackson in particular, but she had written a solo opinion. And so I otherwise would have said, "The dissent says," but because her opinion was a solo opinion, and Justice Sotomayor had written the principal dissent.

- You had to identify.

- I had to write, yes. So I had to say. So that's the convention when you're talking about someone with an individual opinion. But she had made forceful arguments in her dissent that I thought should be answered. And so I don't, I mean, typically, I am different from Justice Scalia in that I tend not to be sharp. I try to reserve it. And I felt like her arguments had been forceful and they should be responded to with force. I mean, I felt like it was calibrated to the argument about ideas that we were having, not a personal one. I sit next to Justice Jackson in that room at the conference table, and we get along, we talk. I mean, it's not about ideas. There's not personal.

- So the nine of you really can do it. You really can go at it, hammer and tongs on ideas and interpretations while retaining respect and even affection for each other personally.

- Yes, but I think that's an act of the will.

- You have to work at it.

- You do have to work at it because it's very easy to take things personally, to get angry, to not assume the best. And so I think it is an act of the will. And I think doing things like going to lunch and spending time together, asking about people's children, what they're reading, what they're watching on TV, I think just those little very human things. You don't have to be best friends with someone, but I think those human things help you to appreciate this isn't just a package of ideas. Well, this is a person.

- Your faith. Here's the late Senator Dianne Feinstein of California talking about you during your confirmation hearing for the Seventh Circuit Court of Appeals, quote, the dogma. This is Senator Feinstein addressing you, "The dogma," that would be the Catholic dogma, "lives loudly in you." How does your faith affect your work?

- Well, my faith certainly affects who I am and it affects my life decisions. I think there's some sense, and I got pressed on this both in the Seventh Circuit, primarily in that Seventh Circuit hearing, but also a little bit at the Supreme Court, a kind of a disbelief that I wouldn't be kind of deciding cases like calling up the Pope on the phone to find out how I should decide a particular case or maybe flipping through the Bible to decide how CASA should be decided on national injunctions. And no, that is not, my faith doesn't influence how I decide individual cases in any way, shape or form. And one thing I've pointed out to people who have asked about this is I took an oath with my hand on a Bible and you know, I believe in the Bible as a Christian, I take that seriously to uphold the Constitution of the United States, which is different from the catechism of the Catholic church. So my faith defines who I am as a person. It affects the decisions I make about collegiality and how to treat people and respect. It's made, it's affects the decisions that my husband and I make about how to raise our family, how to treat each other, what we do. All of that is core to who I am. But it also is core to who I am that I take seriously this oaths I made and-

- Dobbs, that was what everybody would say. Is it?

- No. And I think one of the difficult things about that, actually, my father had some parishioners come up to him. He's a deacon in the Catholic church and say some older people came up to him and said something to the effect of assuming that my vote in Dobbs was affected by my faith. And my father just stopped them and said, 'This was not about that. This was not about this, this was about her view of the constitution." And it was. I say in the book, "Look, I, as a personal matter, had written back when I was a law student about the death penalty. And that as a matter of my own personal sense that I disagree with the death penalty. But I don't decide death penalty cases that way. I decide death penalty cases as the law would require them, including denying relief in death penalty cases."

- What about this argument of got Maureen Dowd in the New York Times? "There's an astonishing preponderance of Catholics on the Supreme Court. Six out of the nine justices." Do any of the Catholics on the court? I think.

- I have no idea how that happened. I mean, it is, yeah. No, I mean, it is unusual. It hasn't happened at other times. I mean Catholics were, I mean, maybe it was kind of a big deal when Justice Brennan was on the court, as a Catholic. I mean, it used to be the case that Catholics were not well represented. I mean, remember, I mean, with JFK being president was a big deal.

- I looked at the first Catholic was appointed to the court in the first half of the 19th century. So there have been.

- Oh, there have been Catholics. But there was always kind of one here, one there. Justice Brennan had to say. And he answered questions about his faith and confirmation hearings too, about whether he would decide cases consistently with his Catholic faith. 'Cause I think there was always some suspicion of Catholics. So yes, there were Catholics on the court. But the idea in the early 20th century, even mid-20th century-

- Some hot outline to Rome from the, no?

- Well, the idea that there would be six Catholics on the bench would have been very surprising.

- We've already talked about the court and the press, the court in Congress. Here's a striking passage from Ben Sasse when he was senator. This is 2018. This is a speech he gave on the floor of the Senate. In my judgment, every word he uttered in 2018 could be spoken again today and then some. "The legislative branch is supposed to be the center of politics." After all, it's article one in the Constitution, right? Not the presidency. Congress's article one. "Why isn't it for the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. We write giant pieces of legislation that people haven't read, filled with terms that are undefined. And we say the secretary or the administrator of such and such shall promulgate rules that do the rest of our jobs." Close quote. If Congress doesn't do its job, what position does that put you in?

- Well, I certainly don't want to throw stones across the street.

- you don't feel even a little impulse.

- But I will say this, I think that we talked before about how the Supreme Court. The Supreme Court effectively updates the Constitution through its decisions. It takes off the pressure of constitutional amendment because there's always some kind of, you know, push and pull. Of course, all of the branches have to be doing their job for the right equilibrium to be there. Otherwise the pressure will move to the other side. The pressure might move to the executive to do more if Congress is doing less. If the Supreme Court's not doing enough likewise, it will put pressure on the political branches. But I think my view, and I said this with respect to CASA, is that if one of the other branches is either not doing what they should be or exceeding their powers, the answer to that counterweight can't be that we exceed ours.

- So is an American allowed to hope that as the court returns to original meaning and is stricter about interpreting the Constitution, Congress will eventually get the idea that it can't just toss matters over to the Supreme Court, toss matters to the agencies, which then get kicked up to the next level of court that end up at the Supreme Court and let the Supreme Court produce the policy preferences? Congress is going to have to do its job and eventually, that will dawn on Congress. Are we allowed to dear the hope that?

- Let's see. So again, I don't wanna criticize Congress, but I would say I think the American people can be hopeful about lots of things. And I think that I was just talking about how branches the push and pull can affect how branches react to one another. I think that's certainly true of the political branches. They respond to the people. So if the American people have that hope, if that's what the American people want, I think the political branches should be responding to the hopes of the American people.

- All right. The executive, "Listening to the Law." "When it came to policymaking, President Andrew Jackson believed both the President and Congress were duty bound to act according to the Constitution as they interpreted it, no matter the opinion of the Supreme Court." And in this story that you tell about, you're describing ways, Presidents Jackson Lincoln, others took Supreme Court decisions and in some cases, all but set them aside, Jackson vetoed a national bank, even though the Supreme Court had already held that a national bank was constitutional. Okay, so this brings us to a question that's almost mandatory in the current political climate, although I don't know what you're going to do with it or with me for asking it. And let me stipulate that as far as I am aware, the number of times that the Trump administration has violated a court order is zero. As far as I'm aware. But if President Trump or one of his successors took the Jackson position, if a president said, "Well, wait a moment, the Supreme Court has its interpretation of the Constitution and I have mine," what could the court do?

- So there's a distinction between judgments and opinions. And that distinction was drawn both by Lincoln and by Jackson. And I think there has always been some room for the States or Congress or the President to push back against constitutional interpretations that they disagree with.

- The judgments are binding on the parties before the court. Opinions?

- Opinions are not, right? So judgments no President has declined to obey a judgment of the Supreme Court. Opinions. You know, that was Lincoln's point. You know, opinions-

- Dred Scott. Right.

- Different to Dred Scott. He said, "I would respect the judgment in Dred Scott, but I do not accept the court's opinion of Dred Scott, of what the Constitution requires. I do not accept the court's opinion in Dred Scott and will continue to work for that to be overcome." And I think-

- And that was fair enough in that context, right?

- "Fair enough in that context," meaning what?

- Meaning that Justice Taney and Dred Scott had said in effect, Black people do not have the same rights under the Constitution as white people. Lincoln said, "I'll respect the judgment. Dred Scott has to be returned to his owner." He was a slave. "But I refuse to accept that Black people are permanently second class."

- That the Constitution requires that result. That's what the Constitution says. He did not believe that Dred Scott, as an opinion, had correctly interpreted the Constitution, except there has to be some room. I don't think anybody would be happy with a system in which the branches who represent the people couldn't criticize Supreme Court decisions. We have a long line of precedents who have done that, not just Lincoln and Jackson, who have criticized Supreme Court decisions and said they should be overturned. You know, I can recall in the 2016 presidential election, whether Citizens United, the decision about campaign finance should be overturned. I can remember Hillary Clinton when she was a candidate saying, "Citizens United is wrong. And that should be overturned and I think the Supreme Court was wrong." And I can't remember if she put that in the context of potential Supreme Court appointments. But we should have the ability to criticize Supreme Court opinions. I mean, you were reading me lots of criticism of Dobbs and you know, certainly some of that criticism came from political actors as well.

- Last question. "Listening to the Law." "We cannot legislate a culture of respect for law into existence. Our constitutional project can succeed only if Americans invest in it." Explain that.

- I think that the courts, the Supreme Court and the courts cannot do everything. We can decide the cases in front of us and we can uphold the Constitution. So that oath that I took, I can discharge that, but the people have to want that. So that's one hope that I have for the book is that by, I have some chapters in the book on the Constitution itself. I want people to know how the court works. I want people to be familiar with the Constitution and insist on it's importance, insist on it's importance, you know, in our republic. You were asking before about constitutional amendments, if people don't like the way, they don't like the status quo, if they don't like it the way everything is operating, we should have an engaged citizenry that has a movement to amend the Constitution. I think that the rule of law commitment to the Constitution, a lot of it is done by norms. A lot of it is done by what the American people want. A lot of it is done by patriotism.

- Would you conclude our conversation by reading a passage from "Listening to the Law?"

- "After I joined the court, a friend asked me to tell her honestly, without rattling off an answer, whether I liked my job. She didn't have to worry about my rattling off answer because I didn't have one ready. After more time, I still don't have a yes or no answer, but I think that's because it's not quite the right question. While I've thought about other jobs in terms of whether I like or dislike them, this one is different. Describing a seat on the court that way makes it sound, at least to my ears, like the most important thing is what I get out of it. But for a judge, that's the least important thing. A seat on any court is oriented toward public service. Sometimes, it is rewarding. Other times, it is costly. It is always however, a privilege."

- Amy Coney Barrett, associate justice of the United States Supreme Court and author of "Listening to the Law." Thank you.

- Thank you.

- For "Uncommon Knowledge," the Hoover Institution, and Fox Nation, I'm Peter Robinson.