Justice Amy Coney Barrett on making big decisions, inside and outside the Supreme Court
Justice Barrett talked with Dean Kerry Abrams and Duke Law students about her approach to judicial interpretation and the influences that have shaped her thinking
United States Supreme Court Justice Amy Coney Barrett
For Justice Amy Coney Barrett, accepting a nomination to the Supreme Court of the United States wasn’t an automatic decision. Justice Barrett had been in the national spotlight before as a federal judge nominee, and she wasn’t eager to place her family, which includes seven children, back in it.
“Some people might imagine that call being so exciting, because in many respects, from the moment you start law school … you're learning about the law through the lens of what the Supreme Court does,” Justice Barrett told Duke Law Dean Kerry Abrams.
Ultimately the call to public service won out, and Amy Coney Barrett was sworn in as associate justice in October 2020.
Justice Barrett spoke with Dean Abrams about her path to the court, its inner workings, and her approach to jurisprudence during a visit to Duke Law School that also included judging a student moot court competition.
Justice Barrett recounted a happy childhood in New Orleans, where she was the oldest child of seven. After earning her JD at Notre Dame Law School, she clerked for D.C. Circuit Court Judge Laurence Silberman, then at the Supreme Court for Justice Antonin Scalia, a formidable and exacting boss who liked to engage his clerks in verbal sparring matches and was a brilliant writer. “You didn’t want to disappoint him,” Justice Barrett said. Striving to meet Justice Scalia’s high standards sharpened Justice Barrett’s oral and written advocacy skills, she said, joking that “all other jobs were downhill” after helping craft opinions delivered by the nation’s highest court.
In fact, Justice Barrett told Abrams, she’s enjoyed every step in her legal career, which included two years in private practice before returning to Notre Dame Law, where she was a faculty member for more than 15 years, enjoying student interactions and the freedom to pursue her own research agenda.
Her first experience under a public microscope came in 2017, when she was tapped for a seat on the Seventh Circuit Court of Appeals by President Donald Trump. The level of attention and public scrutiny that appointment drew came as a surprise. But it prepared her for the next step — nomination and the “confirmation process to the Supreme Court, where over the past five years she has been part of cases involving gun rights, access to abortion, affirmative action, and redistricting.
Drawing back the curtains on the court
In her recent book Listening to the Law: Reflections on the Court and Constitution, Justice Barrett seeks to demystify court processes, explaining how the justices select cases to hear from thousands of petitions, the court’s use of the emergency docket, how rulings are deliberated, and how the author of each opinion is chosen.
In her own opinions, Justice Barrett said, she takes the same approach that she did as a professor, aiming for clarity and readability by a broad audience.
“I have you all in mind,” she told Duke Law students. “I want my opinions to be understandable. My view is that the less meat you have on the bone, the more people can actually see what matters in the argument.”
Justice Barrett said she also wanted the book to convey that the justices’ work is legal, not political — an impression she said news stories can sometimes give, to the frustration of judges.
“We take the job very seriously, reading all of the briefs and trying to reason to what we think is the best answer,” she said, encouraging students to read opinions. “You may well decide at the end of the day that Citizens United was wrongly decided. But I think you should engage with the argument on its own terms and look at the reasoning of the opinion, read the majority and the dissent and decide which argument holds up better, because that's what justices across the spectrum are trying to do.”
Asked by Abrams about surveys showing declining public trust in the court, Justice Barrett said faith in all public institutions has fallen.
“Unfortunately, we live in a time of great polarization where people are not trusting each other much either,” she said. “I think we're living in a time where people see one another as ‘other.’ I hope that we all could try to change this way that we're relating to one another in America of late."
Duke Law School Dean Kerry Abrams speaks with Justice Barrett
An originalist approach to jurisprudence and due process
A majority of the current justices, Justice Barrett included, have described themselves as originalists. Describing her approach to jurisprudence, Justice Barrett said she believes a statute’s text should be interpreted by its accepted meaning at ratification and applied to present-day problems.
“It’s not trying to figure out how people in 1791 would have solved the problem before you. It's just trying to figure out what the law means,” she said.
And while Justice Barrett acknowledged that many people, including herself and members of her own family, would have been excluded from voting at the time of the founding, that doesn’t delegitimize the Constitution, she argued, because it allows for its own amendment.
“While it's taken us far longer than it should have to rectify the injustices that were permitted by the Constitution, the process of amendment and civil war did make that right,” Justice Barrett said. "I think the fact that we have accepted the Constitution, we continue to live with it, and that we have amended and improved it, and expanded equality, is its saving grace.”
Some of the court’s cases have involved substantive due process rights — those not expressly protected in the Constitution or its amendments but implicitly recognized as fundamental liberties, including the rights to marry, have sex, procreate, and use contraception.
Wading into substantive due process doctrine is inherently controversial, given the lack of objective criteria for deciding what rights are so important they should be granted to all, Justice Barrett told Abrams.
Justice Barrett analogized substantive due process cases such as Obergefell v. Hodges and Loving v. Virginia, in which the majority extended the fundamental right of marriage to all regardless of sexual orientation or race, to First Amendment cases. Fundamental rights in substantive due process cases, she explained, are like the right to free speech – once the right has been established, it applies to everyone. In contrast, issues such as assisted suicide or abortion do not, in Justice Barrett’s opinion, receive substantive due process protection, because, unlike the right to marriage or contraception, there is not a societal consensus that they are rights “implicit in the concept of ordered liberty.”
“The risk is that you have a majority of the Supreme Court choosing for the whole country what ought to be a fundamental right, even though it may well be that it wouldn't pass by constitutional amendment,” she said.
“I don't think we should have a system in which judges are imposing their idea of what the important rights are on the people. I think we should be trying to look to some indicia of what the people think are the most important rights.”
“An arranged marriage with no option of divorce”
Justice Barrett also offered insight on agreed-upon rules of etiquette that help the justices to maintain collegiality, even when they disagree. These rules include shaking hands before they take the bench, refraining from nitpicking each other’s writing, and letting each justice speak without interruption. After case discussions, she said, the justices share lunch with one rule: no talking about cases.
“I think it's really important to have that time where you're talking to people just as people, because then you’re seeing them as a real person and not just a package of ideas that you might disagree with,” Justice Barrett said.
“Being on the Supreme Court is like being in an arranged marriage with no option of divorce,” she quipped. “Maybe you don't agree with them all the time, but you're going to be with them for a long time. So it’s in everyone’s self-interest to get along.”
Similarly, Justice Barrett urged students to live full lives outside of work by structuring time for family, friends, and personal interests, and regularly exposing themselves to views that challenge their own.
“The habits that you form now are the same ones that you're going to carry with you in your careers, so start now,” Justice Barrett said.
“Make time to have dinner with friends — maybe people you don't always agree with. What makes life rich is being able to have a multitude of friends and to be able to get along and see competing perspectives. And I think it's really important to make time for that.”