Four days before the presidential election in November 2016, the Supreme Court held a beautiful ceremony in memory of Justice Antonin Scalia. The event honored Scalia the man and Scalia the jurist. But for me, a deep sadness pervaded it. Not only was my old boss gone, but his jurisprudential legacy would soon be erased. Everyone knew that Hillary Clinton would trounce Donald Trump on Election Day. Scalia’s seat, which Senate majority leader Mitch McConnell had kept open since his death in February, would soon be filled, perhaps by Barack Obama’s nominee Merrick Garland, perhaps by a more progressive pick by Hillary. Either way, the Court would have a new and emboldened liberal majority that would no longer have to depend on Justice Anthony Kennedy to wreak havoc on the Constitution.
In the cafeteria before the ceremony, I sat down at a table with other former Scalia law clerks, and I met for the first time a Notre Dame law professor by the name of Amy Coney Barrett. Little could she or I have imagined that four years later she would become President Trump’s third appointee to the Supreme Court and complete his process of transforming the Court into a body that would expand and entrench Scalia’s legacy.
Barrett’s ascension began when Trump nominated her for a federal appellate seat in 2017. Democratic senator Dianne Feinstein’s display of anti-Catholic bigotry at Barrett’s confirmation hearing—which culminated in Feinstein’s declaration that “the dogma lives loudly within you”—turned the faithful Catholic mother of seven into a conservative icon. When Justice Ruth Bader Ginsburg died just weeks before the 2020 election, Barrett was the obvious pick to replace her and probably even the only nominee who could have been confirmed.
Barrett marks her fifth anniversary as a justice later this month. During her tenure, Scalia’s legacy has already flourished far beyond what seemed possible when he died. Consider some major examples. Over 30 years ago, Scalia vigorously dissented from the Court’s refusal to overturn Roe v. Wade. In her first full term on the Court, Barrett provided the decisive fifth vote to restore policymaking on abortion to the democratic processes. Scalia condemned the Court’s allowance of racial preferences in university admissions. Barrett was part of the majority that ruled racial preferences are impermissible. On the Establishment Clause, Scalia lamented the Court’s failure to repudiate the so-called Lemon test, which he colorfully compared to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Three years ago, a majority that included Barrett pronounced the death of Lemon.
It’s no surprise that the political Left isn’t happy with Barrett. What’s far more puzzling are the vitriolic attacks that some on the Right have leveled against her. To be sure, Barrett has occasionally parted ways with some of her conservative colleagues on how far and how fast the Court should move to correct unsound precedents and to reverse bad lower-court decisions. Differences in temperament and experience can lead to such divisions among like-minded justices, and there is plenty of room for reasonable disagreement in this realm.
Barrett directs her new book, Listening to the Law, to the general public rather than to her critics on either side of the ideological spectrum. In clear prose with occasional gentle humor and homespun analogies, she provides a very accessible primer on how the Court operates and on how she understands her role.
The first part of Barrett’s book consists of six chapters that explain the work of a justice. Even in the best of times, the work has its unpleasant aspects. As Barrett puts it, being appointed to the Court “is like an arranged marriage with no option of divorce: it locks you into a long-term relationship with people someone else picked.” Barrett emphasizes how the judicial oath requires a judge to resist the “inside pressure” to indulge one’s own policy preferences and the “outside pressure” to please friends and avoid harsh criticism. As the book’s title suggests, Barrett recognizes that a justice must be a servant of the law, discerning and obeying its commands, rather than a master who refashions the law to impose her own will.
Barrett explains her own process of deciding a case, from reading the parties’ briefs (but very few amicus briefs) at the outset to writing an opinion. One surprise to me is that she usually writes first drafts in longhand. (Scalia was an early adopter of the word processor.) She also provides an engaging account of the role of law clerks, as she deftly draws on other sources—meticulously cited, of course—for amusing historical tidbits.
In the middle part of her book, Barrett provides lessons on the history of the Constitution and of the system of divided authority, or federalism, that it creates between the federal government and the states.
At the White House ceremony at which President Trump announced her nomination to the Court, Barrett declared of Scalia that “his judicial philosophy is mine too.” In the third part of her book, Barrett undertakes to explain that philosophy. Our written Constitution “is, first and foremost, a legal text.” The originalism that Barrett espouses holds that the Constitution’s provisions—including, of course, its amendments—should be understood to mean what they meant when they were adopted.
Barrett is deeply knowledgeable about the intricacies of originalist methodology, but she does not delve into them here. Instead, she counters common confusions. The goal of originalism, she explains, “is not to gaze into the minds of the framers to determine how they intended the Constitution to apply in particular circumstances.” Originalism does not call for judges to be historians. Instead, like every other approach that employs history as a tool of constitutional interpretation, it merely requires them to be “competent to deal with historical materials.” Originalism does not always generate “easy answers or preven[t] bad judging.” Barrett embraces it for the simple reason that “it’s the right way to think about law.”
What we call textualism is nothing more than originalism in the realm of statutes. Barrett defends applying the text of a statute even when the result appears to be at odds with the statute’s larger goals. A legislature, she explains, “can express its collective intent only in the language it chooses.” It’s “pure guesswork” to “figure out what Congress really wanted,” as “[e]ach legislator has her own understandings about how (and to what degree, at what cost, and with what trade-offs) the statutory language accomplishes her own policy goals.” And many disputes involve issues that no one would have thought about at all.
Barrett’s book is not a memoir, and only a brief opening chapter provides some insights into how she has combined her deep dedication to her family with her remarkable professional achievements. Getting up at 5 a.m., having her husband fully involved in running the morning routine, and keeping a “somewhat obsessive focus on efficiency” are part of the answer. So, surely, are her strong faith and prodigious intellect.
God willing, in the decades to come, Justice Barrett will continue to carve out her own distinguished legacy, one in which Justice Scalia would take pride and joy.
Listening to the Law: Reflections on the Court and the Constitution
by Amy Coney Barrett
Penguin Random House, 317 pp., $32
Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and writes frequently for National Review’s Bench Memos blog.
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