Listening to the Law
Listening to the Law: Reflections on the Court and Constitution is Justice Amy Coney Barrett’s book about her life in the law, the Supreme Court on which she serves, the Constitution this Court authoritatively applies in adjudication, and the ways that Barrett approaches interpretive problems posed by the Constitution and laws of the United States.
This category of book—by a sitting Supreme Court justice, for sale in airport bookstands and other such venues rather than for use in law offices—presents special dangers. If this book had turned out to be a mass-market product glittering with majestic generalities (as too many other books in this category have been), reading this book for review would have been like listening to the law-book equivalent of Muzak. The reality was more enriching. The book has definite personality and perspective, and is well-conceived and well-composed. More expository than argumentative, it is written in an accessible, occasionally understated manner.
We learn in Chapter 1 that Barrett dreamed of being an author or an English teacher rather than a lawyer, though she “loved studying law.” A sense of some of her challenges as an author of this kind of book—and how she handles them—appears immediately at the beginning in the “Author’s Note.” Here we are apprised that Barrett will not use the names of family members other than her husband Jesse; will not reveal internal conversations with other justices; will not express a view about the soundness of decided cases unless she publicly dissented or the case has been overruled; will not discuss political disputes; will not say how she might decide issues that haven’t come before her; and will not “get into the weeds of scholarly debates.” These are serious constraints. Barrett’s adherence to them ends up enlivening her expositions in the same way that crisp lines can accent colors within.
Many of the book’s stories feature Barrett’s family members, some in the background and others in the foreground. The reader encounters not only parents and children, but also “packs of cousins” as grandparents, siblings, in-laws, nephews, and nieces “vacation with a small ‘v’” at the lake every summer. There is “a favorite aunt” who gently but firmly presses Barrett on the relationship between law and justice, and a brother-in-law who does the reading on Dobbs and Roe and Casey and really wants to converse about these cases. We learn of letters (preserved in a sea bag when much else was destroyed in Hurricane Katrina) through which grandparents awkwardly courted during World War II. And we are introduced to an iconic great-grandmother through a picture of her “tiny” New Orleans house that Barrett keeps her desk. This icon strengthens her resolve to stretch herself and “to keep trying.” (This picture is also one of about twenty—mostly of people—that appear the book.)
Apart from the Author’s Note, an introduction, and a conclusion, the book has fourteen chapters. The leadoff chapter (“My Life in the Law”) is autobiographical. The remaining chapters are distributed into three parts: “The Court and Its Work” (Part 1, comprising Chapters 2 to 7); “The Constitution and the American Experience” (Part 2, made up of Chapters 8 to 10), and “Thinking About the Law” (Part 3, Chapters 11 to 14). Barrett writes in the first-person singular throughout, and her introduction provides a helpful roadmap for the three parts of the book. In her introductory preview of Part 1, for instance, Barrett writes that this part “relates how I think about my job, how I go about deciding cases, and how the Supreme Court fits into the bigger picture of our government.”
One way to read this book could be as a kind of character sketch for virtues that contribute to judicial excellence. That’s not the framing Barrett supplies, of course. Such a preachy kind of framing would be self-defeating and lacking in self-awareness, like a job interviewee identifying her humility as the character trait of which she is most proud. Barrett’s own views about judicial character nevertheless emerge out of a variety of selections that she makes in discussing constitutional history and the history of the Supreme Court. Some traits that Barrett admires can be seen, for example, in her choice of anecdotes to share about Chief Justice John Marshall. This includes some of the more well-known, like Marshall’s “it must be raining somewhere” (think Jimmy Buffett’s “five o’clock somewhere”). This is echoed in Barrett’s keeping of champagne on hand for impromptu celebratory in-chambers toasts for matters ranging from quick “joins” on a circulated opinion to celebrations of a baby’s birth. There are also less well-known Marshall stories, like that of the visitors to Marshall’s home in Richmond who found him “with his sleeves rolled up and a handkerchief tied about his head, helping to scrub the floors and set the house in order.” A reprise of this kind of scene from Barrett’s life might be when we read about Barrett and her youngest son going through the final stages of their pre-school, pre-work morning routines while listening to a playlist that features “an eclectic mix ranging from the soundtrack of Disney’s Encanto to the ‘Cha Cha Slide.’”
Anecdotes throughout the book indicate Barrett’s admiration for judicial mentors for whom she clerked, Judge Laurence Silberman and Justice Antonin Scalia. She credits Silberman, for instance, with prying her out of her office for lunch with him and the other clerks when she otherwise “would have stayed buried all day in briefs, books, and draft opinions.” Silberman also accompanied and advised Barrett, she notes, for her judicial confirmation hearings. Scalia passed away while Barrett was still a law professor, but his influence is evident throughout the book. Her chosen title for this book, Listening to the Law, bears a family resemblance to the title of a book by Justice Scalia (co-authored with Bryan Garner), Reading Law. Perhaps the best tribute to Scalia is that Barrett rigorously follows Rule No. 2 from another Scalia book, Making Your Case: The Art of Persuading Judges (also co-authored with Bryan Garner). This Rule is “Know your audience.” For a lawyer whose audience is judges, this means knowing not only a judge’s “judicial philosophy,” but also how the judge runs her courtroom, her background, interests, and other “personal characteristics.” For a judge writing a book for a popular audience, Barrett adherence to Rule No. 2 evinces awareness that she is writing predominantly for nonlawyers.
Rule No. 1 in Making Your Case is “Be sure that the tribunal has jurisdiction.” This is a rule that could have featured more prominently in Barrett’s Chapter 2, “The Commission and the Oath.” This chapter includes some of the most memorable “teaching moments” in the book. Many extend beyond judging, such as Barrett’s father’s admonition to “control your emotions or they will control you.” For judges in particular, this chapter also includes insightful observations about the need to avoid the natural temptation to be influenced by “the desire of admiration or fear of scorn.”
Barrett points here to the need for self-knowledge and self-mastery. “Choosing truth over status requires strength of character,” she writes, and “achieving it requires mastering the natural impulse to be a people pleaser.” This preferential option for prudence—the “virtue that disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it”—is especially important for judges.
It is precisely because a judge’s self-conception and understanding of her role is so important that this chapter would have benefited from a better account of the relationship between law and justice. In answering her aunt’s expressed disappointment that Supreme Court decisions are driven by “legalities” rather than “doing justice,” Barrett seemingly affirms the distinction but argues for adhering to the “legalities” horn of the dilemma: “The guiding principle in every case is what the law requires, not what aligns with the judge’s own concept of justice.” The judicial oath that Barrett discusses in this chapter defines the federal judicial role by reference to the obligations to administer justice, to do equal right, and to carry out one’s official duties. Except in circumstances in which enforcing the law would require the judge to commit an injustice, this oath does not admit of a disjunction between doing justice and doing what the law requires.
The missing ingredient in Barrett’s account of judicial character is of justice as a virtue, a quality of character that “consists in the constant and firm will to give their due to God and neighbor.” As Pope Leo XIV has recently explained, “[t]radition teaches us that justice is, first and foremost, a virtue.” The proper act of the virtue of justice is to render to each his or her ius (meaning “due” or “right”). “Jurisdiction” derives from combining iuris (“of right,” “of due”) with dicere (“to speak,” “to declare”). The reason that Supreme Court decisions are about “legalities” is that the Court’s specific contribution to the judicial administration of justice is to resolve significant and unsettled questions of federal law properly presented in cases or controversies before them. Insofar as the resolution of these federal-law questions informs what each party to a Supreme Court case is due in justice under law—each party’s ius—the administration of justice occurs in addressing exactly such “legalities.” Latin aside (see Rule No. 2), this jurisdictional account of the relationship between law and justice at the Supreme Court is not too complicated for explanation lakeside.
Chapter 3 (“Working Together”) presents some illuminating vignettes about how the justices as individuals try to cultivate a sense of camaraderie in their common calling at the Court and extending out among their families. Chapters 4 through 6 offer an account of the Supreme Court’s case-acceptance and decision procedures as seen through the eyes of an insider attentive to the interactions of all the Court’s personnel. For those interested in reliable accounts of Supreme Court procedures, these chapters operate as an update for the concluding four chapters of former Chief Justice William Rehnquist’s book on the Supreme Court. Its second edition was published in 2001, which means that the then-chief justice would have been working on revisions during the year that Barrett clerked at the Court. It is perhaps fitting, then, that Barrett devotes all of Chapter 5 to “Law Clerks in Chambers.” This chapter’s portrait of law clerks as an institution within the institution draws on the work of political scientists and historians unavailable when Rehnquist wrote. Barrett also writes here with evident affection that the laconic former Chief would not have expressed even if he felt it.
Chapter 7 (“Judicial Power and Restraint”) could profitably be assigned in a law school course on constitutional structure. One illustration of Barrett’s care for legal precision in this chapter comes in her explanation of how Chief Justice Marshall’s 1803 opinion for the Court in Marbury v. Madison relates to the practice we now call “judicial review.” Conventional histories often overclaim for Marshall and the Court in this case by identifying it as singlehandedly establishing judicial review. Barrett is more careful in asserting that “Chief Justice John Marshall explained [judicial review], and thereby solidified it.” This is enough to give Marshall his due for Marbury.
Whereas discussions of Marshall are de rigueur for this kind of book about the Court and the Constitution, Barrett breaks the mold with her choice of Abigail Adams as Part 2’s protagonist. Barrett’s featuring of a female lead for Part 2 is consistent with Part 1 (which begins with her great-grandmother’s house) and Part 3 (which begins with her grandmother’s shrimp remoulade recipe). In contrast with the massive elk head that dominated Justice Scalia’s chambers after he took the animal while hunting with a former clerk in the early 2000s, Barrett “chose to hang a portrait of Abigail Adams, perhaps the most influential woman of the Founding Era, above the fireplace in [her] office.” (This portrait is reproduced in the book.) Adams’s prominence in Barrett’s narrative is one distinctive way that Barrett “grounds the Constitution’s story in the experience of its flesh-and-blood creators and explains how it enables Americans to live together today.” She highlights Abigail Adams’s confidence, grit, economic acumen, and capacity for self-sacrifice in service of her family’s and her new nation’s common goods. “Her life, like the Constitution itself, evokes both history and hope.”
Although Barrett refers multiple times to “the Miracle at Philadelphia,” her narrative about the Constitution is not a simple “just-so story.” In a chapter devoted to the Constitution’s process for formal amendment, Barrett invites the reader to look through the lens of her own life in a paragraph that brings out how much has changed:
Though I sit on the Supreme Court today, there’s no chance I could have served as a delegate to the Constitutional Convention. In fact, every member of my family would have fared poorly in the Founding Era. As women, my four daughters and I would have lacked many of the most basic rights, including the right to vote. My two adopted children, descended from slaves in Haiti, would have had virtually no rights at all. Even my white husband might have been barred from the ballot box. Coming from a modest background, he likely would have lacked the wealth necessary to satisfy the property ownership requirement. And as Catholics, we all would have been disqualified from holding office in many states.
The reader should appreciate from passages like this that Barrett has worked hard to shed any excessive attachment to abstraction she may have developed in her former life as a law professor.
The shrimp remoulade recipe that begins Part 3 shows that “[t]raditions can be maintained orally,” but also that “instructions repeated by word of mouth may vary from the original.” Observing that “[w]riting enables precision and preservation,” Barrett notes that she prefers using “Mom’s handwritten notes” rather than “working from memory.” The four chapters in Part 3 are titled “Can I Have That in Writing?” (Chapter 11), “Past Meets Present” (Chapter 12), “All About Words” (Chapter 13), and “Don’t Take It Literally.” These chapters provide something of a primer on originalism (for constitutional interpretation) and textualism (for statutory interpretation). These are more explanatory than argumentative, though I would not be surprised if some readers were to underestimate these chapters’ persuasive power for general readers because of the tone Barrett takes in them. Even readers like me who find a version of intentionalism superior to Barrett’s version of textualism can appreciate her humorous illustration of “why literalism fails.” When Barrett spent a college summer abroad in France to learn the language, she responded “Je suis pleine” (literally, “I am full”) to her host’s inquiry whether she wanted more food. Barrett writes:
I was very proud of myself for responding in French. But my sentence was greeted by uproarious laughter—and not, as I initially assumed, because I spoke French with a distinctive southeastern Louisiana accent. It was much worse than that. I learned that in French, the phrase “je suis pleine” means “I am pregnant.” While that phrase did come up with some frequency later in my life, it was definitely not what I was trying to communicate at the time.
That’s literally funny (in the figurative sense of “literal,” of course).
Barrett’s conclusion ends with a note of cautious optimism for the continuity of the American constitutional order. Her caution is that “[t]he Constitution required compromise at its conception, and living under it requires compromise now.” Barrett writes that “even if we, like the framers, see imperfections in our nation’s charter, we should not lose faith in the constitutional project.” The exemplary virtue here is gratitude, with Barrett noting that “each generation has continued the project thereby leaving its mark on the next. I’m grateful for the constitutional order we have inherited.”
Questions about how to interpret our Constitution, the reader can conclude, ought to be approached from within the broader enterprise of understanding how to inherit it. The inheritance-based understanding of American constitutionalism that Barrett transmits through this book is itself worthy of being handed on with interest and appreciation.
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