Listening to the Law — Justice Amy Coney Barrett on Faith, Law, and Life

[Music] I'm in the West Conference Room of the Supreme Court building in Washington, D.C. I have the enormous privilege today of being with Justice Amy Coney Barrett. Justice Barrett, thank you for taking the time to have this conversation. Thank you for coming to the court. The privilege is mine. Oh, gosh. Well, thank you. And it's prompted in part, of course, by your new book, Listening to the Law, which is a wonderful book. It's a combination really of I'd say autobiography, a bit about the pragmatics of the court, a little bit of philosophy of law. So, it makes for a very interesting, compelling Thank you. >> read. So, why don't we just sort of get into that and talk about maybe all three of those dimensions. Um I don't think I knew before reading your book that you're from New Orleans. >> Yeah. >> And uh New Orleans is a um remarkable city, unique city. I had the privilege a couple years ago. I I gave the um Red Mass homily there to the legal community in New Orleans. >> Ah. But help me, you know, it's a distinctive place. How did that shape your take on the world being from New Orleans? That's interesting. I've been asked a lot of questions and no one has ever asked me that one, but New Orleans did have a big impact on me. I think New Orleans, it's both in my blood and has framed the way that I view life in many ways, including in that New Orleans doesn't take itself too seriously. >> Yeah. It's a city that certainly makes time for things like fun and food and family and friends. And I have always been a hard worker and a go-getter, but I have always made time for the fun things in life as well. >> Tell me a bit about your great grandmother. So, the picture of her house features prominently in the beginning of your book. And she I think that picture's on your desk here, isn't it? It's on my desk in my home office. In your home office. Tell me about that a little bit. What that picture means to you? So, my great grandmother was also born and raised in New Orleans and she had 13 children. Her husband had a heart attack in his early 40s and left her a widow. And I say in the book she discovered that she was pregnant with the 13th after the funeral. Yeah. So, she lived in a small house and he had advised her to use the life insurance proceeds to buy a house because he said no one is going to rent to a woman with as many kids as you have. So, the house was small and full. And we I I actually didn't know my great grandmother because she died before I was born, but as a family we visited that house at one point. And I was struck by how small it was and how full it was both with people. It was the Great Depression. She was also taking in other relatives to give them a place to live and feeding them, feeding homeless men through the neighborhood. And I was um really struck and inspired by the way that she kept making room for more and more and more in her life. And that's why I keep that picture. Great generosity of spirit, huh? Generosity of spirit and she always she always counted on the Lord to make up for her lacks. One of the stories that I don't have in the book in our family is that her washing machine broke one day. And washing machine was pretty key for a woman with a household as big as hers. So, she just prayed over the washing machine, put her hands on the washing machine, asked the Lord to fix it. And he did. She relied on him. The Lord provides. >> Yeah. You're a graduate of Notre Dame Law School. And I've got a great affection for Notre Dame. I was there as a freshman in college before entering the seminary. Oh. And I came back many years later as a a visiting scholar and taught a course there, worked on a book, and have lots of friends at Notre Dame. Uh I know it means a lot to you. What was distinctive about the way you were you trained in law at Notre Dame? Is there like a Notre Dame approach, Notre Dame school that you were influenced by? So, Notre Dame Law School says we educate a different kind of lawyer. And when I was a law professor, I gave a speech to the graduating 3Ls at one point and I talked about that. What does it mean that we say we're educating a different kind of lawyer? And it's not in the substance of the law that we teach our law students. My constitutional law class covered the same ground as someone at the University of Chicago would have. Mhm. But I think we frame uh the education in terms of vocation. And we're always wanting students to think about their careers not just as an end in itself, but as ways in which you are serving the greater good, the common good. And there are also a lot of opportunities at Notre Dame, which maybe I didn't know you had gone to Notre Dame. Maybe this supported your your own call, uh your own vocation, but there are many many opportunities just for support of faith um outside of the classroom. And that was one of the things that was important to me as a law student, all the opportunities on campus. Was Was Charles Rice teaching there when you were? >> He was my torts professor and >> guy Yeah, cuz he's a guy that had influence on a lot of lawyers I know over the years huh? He sure did. He affect My husband went to Notre Dame. He taught my student as well and his son uh John wound up being our pediatrician. Ah, okay. Who told us when our youngest son has Down syndrome and uh John Rice was the one who told us of Benjamin's diagnosis and he at the same time gave us a book that Charlie Rice had written the introduction to on the life of Jerome Lejeune. Yeah, okay. And wonderful connections there and he was a great figure for a lot of people both in law and in in religion and the spiritual life and all that. You uh had a chance to work with Judge Silberman and also Justice Scalia. Tell me a bit about those two. They're kind of mentors to you. Uh maybe something personal, something professional you learned from each of those great figures. Well, I guess in a in a theme of my New Orleans, always make time for relationships and fun. Judge Silberman, certainly it goes without saying that they both taught me a lot about the law and judging and writing. But Judge Silberman had a wide variety of friends all, you know, across the spectrum, people he agreed with politically and didn't. And he always made time for relationships. We went to lunch with him, you know, most days. And you know, I was a little bit of a workaholic and despite everything I said about time for leisure in life, that didn't apply during the work day for me. And he really cultivated relationships and he worked at being a mentor and that was really formative for me. For Justice Scalia, same um in terms of the number of relationships he maintained. You know, famously, you know, he was very close to Judge Ruth Bader Justice Ruth Bader Ginsburg >> Mhm. despite their great many differences. Um And he had a real commitment to theory and consistency. He had a definitive philosophy of law and he emphasized to his clerks and he lived this out that you follow the law where it leads even if you don't like where it takes you. Yeah. What was like being with him? I I had a chance to meet him precisely once. I was in London and at the Brompton Oratory and he was coming out from Mass, I remember. I just Oh, there's Justice Scalia and I shook his hand. That's my only contact with him. But those who knew him talk about this extraordinary personality. What was it like just to be in the room with Justice Scalia? He filled most of it. He did. He had an extraordinary personality, very larger than life. Lots of personality. So smart and so quick. I mean, he could speak about almost anything and he was funny. He loved opera. He would sing in chambers. >> I heard that, yeah. >> Yeah. Yeah, fun-loving, loved food, loved wine. >> or just a just an enthusiastic voice, huh? >> good voice. He had a good voice. Yeah. Yeah. No, he's someone that a lot of people have been affected by, obviously, both kind of theoretically and personally. And I think that story you mentioned about Ruth Bader Ginsburg is fascinating because the line I think he used was, you know, I do battle with ideas, not people. Yeah. And man, is that needed today cuz I think we've lost that. I think it's devolved where if I disagree with someone at the level of ideas, I've got to attack that person. Look at our society today, even the point of of violence against them. With the two of them, it seems to me are kind of icons of how to avoid that. I I think that's really true. And I mean, I wasn't ever present except in in court. I wasn't present for their personal interactions and the personal time spent together, but I think based on what I observed of him in chambers, what I heard about it and certainly everything that everyone can see about the closeness of their friendship, there was an emphasis on the things they held in common. You know, they both loved opera. Yeah, yeah. Uh they both loved food. They both were very precise writers. You know, they cared a lot about getting things right and about even small things like grammar and and and those kinds of clarity of expression. And I think that something that I I emphasize in my own life and work for in my own life. If you emphasize the things that you have in common with someone rather than always focusing on the differences, well, that's the stuff of which relationships are made. And I think too often today and I think especially this is something I see in younger people, they think the differences are all that there is. Yeah. Yeah. Yeah, I think of my intellectual hero, St. Thomas Aquinas, you know, who has famous disagreements with all kinds of people, but in the in his writings, he always refers to them very respectfully, you know, Moses Maimonides, the great Jewish scholar. He's always Rabbi Moses, you know. And there's a respect for the person even as the ideas are being debated. And I think that's as I say, much needed today. And that to me, Scalia is kind of a a model of that. You know, I You're in one of the hottest of the hot seats in in America, being a Supreme Court Justice. Um how do you manage it from a personal standpoint? This must be, you know, the steady pressure day-to-day and everything you say and do is going to be scrutinized. How do you manage it? I'm interested kind of personally. Yeah, you know, the life of a law professor is not like this and I spent most of my career as a law professor and so that was one of the things that it was difficult to make the shift into, especially when I became a justice as opposed to when I was a judge. It wasn't quite like this. I think part of the way that I'm able to manage it is, you know, we still have four children at home. Yeah. So when I go home, I am not still in a position to just keep thinking about work, to keep thinking about what people might be saying about me, what people might be saying about the court. I really do have to pivot and focus on my kids and, you know, my husband Jesse. And I'm very fortunate to have both in my own family with my children and and now my adult children. My siblings, I'm one of seven. I'm very close to all my siblings, my parents, too. I'm I'm lucky to have a close network of people who really don't care about this part of my I mean, they're interested in what I do. They're interested in what I do. But it doesn't define me to them, you know, it it it's not what they primarily care about and so I can be with them and focus on that and not focus on myself as Justice Barrett. Yeah. I suppose even like as a judge, you have to have pretty thick skin. I mean, whatever you're going to decide, someone's going to get mad at you. I mean, I find that even as a, you know, bishop of a diocese, when you reach that level of authority, whatever you do or don't do, someone will get mad at you. And if you're interested above all in everyone has to like me, you're not going to be happy. You're not going to be happy and you won't be able to make good decisions. The reason that you have the job as bishop or as judge is because you need to make decisions and you need to make it by some criteria other than what people will think. >> Yeah. Yeah, yeah. Let's talk about that a little bit. That's a good segue to, you know, kind of the Supreme Court um, business you talk about in the book. Um, if I'm right about this, that the central argument maybe is that the Supreme Court, the judicial, you know, branch is not the place where we legislate, not the place where we try to instantiate our policy preferences, but it's a place where things are adjudicated according to the law. And I think of I don't know if you, like me, Man for All Seasons was one of one of my favorite movies and it's about many things, but it's about the law in part. And when Moore in that, you know, climactic scene of the courtroom scene and they're trying to you know, twist it so that his silence on the matter of the king's supremacy is seen as opposition and Moore goes, "No, no, the maxim is qui tacet consentire, you know, who who is silent is seen to consent." And prosecutor said, "Well, is that what you hope the world construes or what you want the world to construe?" And Moore says, "The the world can construe according to its wits. This court must construe according to the law." And I thought of that a lot as I read your book cuz you you keep insisting upon that distinction, you know. You might have your own policy preferences. You might have your own, you know, moral vision of the way things should go. But in our system, that's up to the legislature. That's up to, you know, to formulate the laws. Your job is to interpret them, especially in light of the Constitution. Am I getting that right as sort of maybe a central argument of this book? It is a central argument of the book and I'll I'll I'll back up to the Man for All Seasons point and say, "Yes, like you, I love it." I actually it was the first play that I was in in high school. I was in a Man for All Seasons >> you play? You played the I played a juror. It was a very bit role. But that was my first exposure to a Man for All Seasons and I have a picture. Justice Scalia actually had the the very same picture of Thomas More in his chambers that I do. We both got it giving a red mass as as a as a gift. Um, it is, you know, it's funny. I hadn't ever thought of that particular line from A Man for All Seasons as the theme of the book. You know, there's that other famous one where Moore's talking to Roper and he says, "And if you cut all the laws down and the devil turned around, where would you hide?" All the laws being flat. You know, for my own safety, for my own sake. Um, and and I think both of those quotes, the one you gave and that one are capture the theme of the book because you can't if if you do get rid of the laws, right? You know, it's it's what's good for the goose is what's good for the gander. You know, it adhering to the rule of law I think is what offers us protection. Um, and and if we push that down, if we take that away, then I think we're in a bad place as a society. So yes, I do think the role of a judge is to decide based on the law, not based on our own preferences, be they personal or political or whatever. But I think that's one of the hardest things for people to understand about the way the court functions and that is one thing I really wanted to explain to people in the book. Yeah, I was kind of imagining people coming after you and saying, "Well, wait a minute, you're in this high position and and you could really influence the moral, you know, course of our society." And that you would say, "Well, okay, fine, then work at with the legislators. Elect the people that that view it that way. Elect people that might form the law that way." But it's it's a abuse really of the judicial branch to do that. Yes. Yes. And that was actually something that Justice Scalia um, emphasized a lot. So that is one of the ways in which he influenced people, influenced the legal community and influenced me. Well, the line that jumped out at me from him, Scalia said the judge who always likes the results he reaches is a bad judge. Yeah. Help people understand that. It's really on this point, isn't it? >> You know, of all the cases I decide, you know, I've I've decided many already and I'm going into my sixth term on the court right now. Certainly Justice Scalia decided hundreds and hundreds of cases in his lifetime. What are the chances that I am going to like every result that I reach in those cases? I mean, it's not possible unless I'm not being honest. So there are cases, um, in which I don't like the result that I reach. But as you say, the legislature adopts the laws and it's not really for me to decide. It's not for me to decide. Same with the Constitution. The Constitution is our highest law. It's a ratified document. If I read into it what my preferences are rather than interpreting what it says, I'm not being a judge. What was the line from Lincoln again about Dred Scott? Wasn't it like, "I respect the decision, but I don't respect the opinion" or something like that? >> Yeah, I will respect the judgment of the court, but I will not accept it and I'm paraphrasing here as an authoritative construction of what the Constitution means. And Lincoln presided over a civil war to press that point, you know, that But but he respected still the judgment of the court. Yes, because there's a distinction between the judgment of the court and the opinion of the court. The judgment of the court, um, is what the court orders in a particular case, right? So in that case, the the upshot was that Dred Scott had to be returned to his owner. And Lincoln was saying, "I wouldn't try to interfere with the court's judgment in a particular case." But insofar as the court interpreted the Constitution say to say that Dred Scott wasn't a citizen, um, he would resist that. And and that that is as it should be because the court overrules precedent and the court gets things wrong. And if we didn't permit people to push back, if it wasn't okay for Lincoln to push back on that interpretation, then Lincoln said we would cease to be our own rulers. The people would cease to be their own rulers. It's a subtle but important point, isn't it? I I kept just getting that. You kind of ringing the changes on that theme throughout your book. And it's a subtle point, but it's important one, that distinction. Um, I mentioned that something I really liked in your book was the the pragmatics. You you brought us behind these august walls into the workings of this place. And I found that fascinating. What is it the some of the thousands of cases that are proposed to the Supreme Court, you accept only about is it 60? Is that right? So it's a it's a very, uh, you know, difficult bar to get over just to be accepted. Take us maybe hitting some of the major steps from the court saying, "We will hear this case" to the public announcement of the decision. What are some of the nuts and bolts there? Sure. So there are about 4,000 petitions for certiorari filed a year. Those are people asking us to take the case, but we don't take every case. We decide which ones to take and we don't decide which ones to take based on how wrong they are and I think that's one common misperception that the court writes every wrong, that we correct every legal error in the decisions below. We take cases that We take cases that are suited to the Supreme Court's role as the head of the judicial hierarchy. And most of the time that means to clear up confusion in the courts below. If courts are reaching different results on the same legal question, if they disagree, sometimes it's because it's a particularly important issue, so it's one that the highest court should decide. That's roughly the criteria that we use when we're deciding which cases to take. But it is not the case, if we don't take a case, that we are signaling that we think it's correct. Then once the the case comes, there's a very intensive process that lasts for months and months of briefs coming in. We read the briefs. We do the research. We read the sources. I talk to my law clerks. We draft opinions. We circulate opinions. Then the justices go back and forth negotiating over the language of opinions until it can truly represent It's It's a group It's a group product. Yeah, it's a group product. And that is something that I didn't actually, even though I was a long-time law professor and I practiced law and I clerked, I think that when I was away from my role as a clerk, I forgot how much of a group project it is. Um, I don't write just for myself. When I'm writing, it's really important for me to represent the views of the majority for whom I'm Yeah. expressing the opinion of the court. You were the clerk you were clerk of course under Scalia. I met some of your clerks here today. Mhm. How young clerks are they're just kind of starting off their legal career and yet they're participating at a very high level. >> Mhm. Right doing the research and even writing in a draft form some of the opinions. Extraordinary isn't it that you're at that level when you're just starting your your career. It is but it's really and and and that's a common reaction but I think it's actually very important that they're relatively new in their careers. Because one thing that people worry about with justices on the court but judges in general is that they're handing the reins over to these young lawyers to these law clerks. But it's actually the fact that they're so young Uh-huh. that keeps the power balance as it should be. You know they are just a couple years out of law school and they are excellent. You know I hire very smart clerks. They're excellent researchers excellent writers and they can give me advice. But you know I'm I'm not going to be tempted to turn over the reins to somebody who's a couple of years out of law school. Yeah. Yeah. Well it's a great privilege for them of course and a great opportunity. You must talk a bit about originalism. So now moving into kind of theory of law and uh something that's close to my heart as a theologian is this whole question of we call hermeneutics right the philosophy of interpretation. And there's very interesting overlaps actually between biblical interpretation and legal interpretation. Uh you're an originalist from Scalia. And I found a couple quotes here that helping me understand I wanted to get you to respond to them. What that means what that somewhat slippery term means. Uh here's the first one. Determining what the document meant when it was originally adopted. A second what the words meant to those who used them. And the one I found most clarifying determining how informed members of the public would have understood the provision at the time it became law. Um Just say a bit about that like as you understand what originalism means and then why you think it's the right way to approach these legal texts. Well to me and I think even though this is a basic point I think it's actually pretty easy to forget. Yeah. The Constitution is law. It is a legal document and if we're going to express something in words and express it as law the way to understand what it meant what it said what it communicates and I think this would be true no matter what kind of text you're interpreting is to understand what it would have meant to those who were reading it at the time. Um and I say that you should take the perspective of the reader rather than the writer Mhm. not because they will always differ but because in law um the intention of the author doesn't govern you know in the in the same way that we might say in literary works you really care what Shakespeare was trying to communicate what might have been unexpressed. Because the law has binding effect and it has real world consequences I think that the governed those who are bound by the document I think it's their perspective that matters the most because the law governs them. It's very interesting cuz there was a is a point of overlap there. The founder of hermeneutics is a man named Friedrich Schleiermacher uh liberal Protestant theologian early 19th century. And he said the point of the interpreter is to know the mind of the author better than he knew his own mind. So if we could get you know Melville in the room and say what did you mean in Moby Dick then we'd know what Moby Dick means or get Ernest Hemingway. Ernest what did you mean when you wrote The Sun Also Rises then we'd where most practitioners of of hermeneutics after Schleiermacher are very uneasy with that. They call it a romantic interpretation and that's what you're the point you're making there. So like if we got James Madison in this room and said James what did you mean when you know that's not what you're going after. You're not trying to find that. That is not what we're trying to find even if you could I mean I think it would be a different question. >> Yeah. And hermeneutics you know if you're asking that question to Herman Melville if you're asking it to William Shakespeare >> Yeah. the stakes are lower right you're trying to understand the literary document. The stakes are high when you're trying to understand the basic rules that govern us as a society. >> Mhm. And frankly Madison you know we owe a lot to Madison he drafted the Bill of Rights we owe him a great debt. But with all respect to Madison whatever Madison privately harbored in his mind whatever he thought say the first amendment might require that's not the document that the state ratifying conventions ratified right that's what made it the law not Madison writing it down on the page. Yeah. Yeah it's tricky isn't it I mean so it's it's the the audience as you say like the informed audience not just any old person but those who are kind of informed about the law how they understood it at the time. Um There's um in again in biblical hermeneutics we talk about surplus of meaning and that's where it gets a little bit dicey. So you say okay what the author intended there's a whole school of biblical interpretation going after that. What did the author intend? Uh what did the audience that received this text what did they understand it to be? And then even what do I understand it to be today? Mhm. Do I have a whole different perspective on Paul to the Romans because I'm living you know and that brings us to um it seems to me that that critique from the left of originalism the kind of living what living constitutionalism. >> Living constitutionalism. That okay here's this text all right and it was written it was something in the mind of Madison let's say it's the first amendment then you've got how it was understood by people at the time. But I'll play devil's advocate. What's wrong with well people today will read it in some fresh way because of our experiences and shouldn't we allow the Constitution to breathe and to live and evolve? Well that goes back to what I described as my first basic point which seems kind of obvious is that the Constitution is law. Yeah. And law changes in certain ways and so the Constitution I'll say it should be a living document but if it's going to change and breathe and grow that should happen through the amendment process which the Constitution sets out in Article 5. And I think a lot of this has to do with the who decides problem which a lot of law boils down to. The thing with living constitutionalism is that it trusts judges to make those decisions to say now at this point in society let's have it live and move and breathe and let's have it evolve to address this problem this way but that's my view. You know there are nine justices Justice Scalia used to say on these kinds of living constitutional questions that he would be more inclined to pick up the you know Kansas City phone book and pick out five people in the phone book and ask them what they thought rather than these elite lawyers. It's very interesting thing again the parallels with biblical interpretation because uh there's kind of a living hermeneutics when it comes to the Bible. But the trouble is well then the Bible can mean anything you want it to mean. It's like we've lost an anchor in anything like either authorial intention or how it was understood at the time. Oh no I think the letter of the Romans means something completely crazy. And and so I think we've recognized that as a danger in biblical reading. So it seems like you're recognizing that and living constitutionalism can be so open-ended. Well sure it can be so open-ended that it can mean anything and I think on the one hand it could lead to the kind of problem that you're talking about where people can't agree on what it means because everyone has their own idea. But again when you come back to the Constitution as law and I guess this would apply more when you're thinking about like the magisterium or you're thinking about the teaching of the church there has to be something definitive and if it's not rooted in any kind of guide and you just have these words that are infinitely malleable you can't make those choices. Right. Before we get to the to the right wing critique of originalism that issue of amending the Constitution I find fascinating. Wasn't it Scalia argued we should maybe make that process a bit easier that the bar is so high to amend the Constitution and we should lower that bar a bit. He did say that. >> bad idea? You know he did say that and I think there's really something to it. I think you know think about at the time the Constitution was ratified we were talking about 13 states. Um and I think the process of achieving agreement you know Article 5 sets a pretty high bar and receiving that kind of super majority agreement is a lot harder when you're talking about 50 states than when you're talking about 13. Yeah. Yeah. Yeah. Um and I think the Constitution is pretty hard to amend and that puts a lot of pressure on the courts to do the updating. Yeah. I know the a recent plane trip I watched Spielberg's Lincoln again which is I love that movie but it's all about the amending the Constitution and the difficulty involved and the opportunities and uh but I was intrigued by Scalia's observation. Um the right wing critique of originalism call it common good constitutionalism right that would say something like look you're in this high position of a great influence we should seek the common moral good as much as we can and so to kind of hide behind well that's just what the law says. I mean why not do whatever you can to promote a more moral vision of society. Um what's wrong with that approach to it? You know it's actually interesting a lot in the academy of the proponents of this theory happen to be Catholic. Yeah. Um let's see. I believe in natural law and I certainly believe in the common good. I think this goes back to the who decides question. You know I think legislators have you know the duty to pursue the common good. I mean, within the confines of the Constitution and respect for religious freedom etc. Um, but the idea that the court is well-suited or that any court in the country is well-suited to that task is a different thing entirely. I mean, the Constitution distributes authority um, in a particular way. Mhm. The authority that I have is circumscribed. And, you know, it's one thing to say if you like the composition of the current court, I really want to trust them to make decisions to pursue the common good. But, back to that, if you cut down all the laws, >> Yeah. Yeah. you know, you have to imagine, what if I didn't like the composition of the court I was in front of, the court that was making these decisions, and they view the common good quite differently than I do? That's the reason why we have a document like the Constitution because it's a point of consensus and common ground. And if we start veering away from that and reading into it our own individual ideas of the common good, Mhm. it's going to go nowhere good fast. But, as you say, and I think that's an important point again, do it, but through the legislature. It's just a matter of you're trying to keep the thing clear and properly distinguish, right? If you Sure, pursue the common good, pursue your sense of the natural law, but do it through the legislative process. Vote for people that agree with you, and get them to change the law or amend the Constitution. >> Yeah. But, using the judicial branch for that purpose is counterindicated. Yes. That's what I picked up, you know, rather consistently from your your book. Hey, again, on this next point, tell me if if you can't talk about certain things uh but about particular cases. My sense is if a case has been adjudicated already, that you can say something about. >> Yeah, what's public and published in the opinion sure. >> Yeah. Let's just do a little bit with, you know, Dobbs, Roe v. Wade, uh Casey v. Planned Parenthood, which is of course of great interest to Catholics, non-Catholics, too, of course. But, um in light of what we've just been talking about, people might be tempted to say, "Okay, Justice Amy Coney Barrett, she's a devout Catholic. She's probably personally opposed to abortion, and that's why she, you know, voted to overturn Roe v. Wade." And you would say, if I'm getting it right, "No, I I voted to overturn Roe v. Wade, but not for that reason. I voted because it was just poorly decided law." Yes. >> Am I getting that right, or tell me talk about that a little bit. >> 100% right. And and it drives me crazy, but there's nothing I can do other than say, "No, this was consistent with my view of the Constitution, with my understanding of how the doctrine of stare decisis works. Stare decisis means that we generally let precedents stand unless we decide that they were egregiously wrong and inconsistent with the Constitution when decided." Like, we used the example of Dred Scott and Lincoln before. Yeah. Um people think that my father is a permanent deacon in the Catholic Church. And after Dobbs was decided, he had parishioners coming up to him saying things like, you know, "Please thank your daughter for what she did." And my father's also a retired lawyer. And he would stop and say, "You do realize that Amy did this because it was consistent with what she thought the Constitution required." And he said that, you know, most of the time that that didn't seem to register. So, I think people who liked Dobbs and people who disagreed with Dobbs, if asked why I cast the vote that I cast in that decision, I think may well assume that it was because of the assumptions they make about my faith, my personal views about abortion. But, especially given the framework with which I view the Constitution, there are plenty of people who support abortion rights, but who recognize that Roe was ill-reasoned and inconsistent with the Constitution itself. >> Wasn't Ruth Bader Ginsburg one of those? That that she had hesitations about the way Roe was decided. >> and she was fiercely pro-choice, but she did have those hesitations. >> you state it succinctly? The trouble with Roe from a constitutional standpoint was The trouble with Roe was what we were just talking about about living constitutionalism. I mean, there's nothing in the Constitution, certainly, that speaks to abortion, that speaks to medical procedures. The whole thing was grounded I mean, actually, Roe itself didn't even make this quite explicit. But, the best defensive Roe um the the commonly thought defensive Roe was that it was grounded in the word liberty and the due process clause, you know, that we protect life, liberty, and property. And it can't be taken away without due process of law. Well, that word liberty can't be an open vessel or an empty vessel in which judges can just read into it whatever rights they want because otherwise we lose the democracy in our democratic society. And so, the problem, to my mind, with Roe is that it was a free-floating, free-wheeling decision that read into the Constitution The Constitution um the reason why it's difficult to amend is that it reflects a supermajority consensus. And the rights that are protected in the Constitution, as well as the structural guarantees that are made in that Constitution, are not of my making. You know, they are ones that Americans have agreed to, and Roe told Americans what they should agree to rather than what they have already agreed to in the Constitution. >> Yeah. Maybe you can't say this, but I'll say it. Um Casey v. Planned Parenthood, 1992. I've been saying for years is one of the dumbest things ever said by the U.S. Supreme Court. And the one that I always cite is this famous line, "At the heart of liberty is the right to define one's own concept of existence and of the universe and the meaning of human life." That's the most extravagantly stupid definition of liberty that I've I've ever seen. Um for that reason, I'm glad it was it was overturned, you know. What's I mean, I'll tell you philosophically what's the matter with that statement. I mean, it's very it's an incoherent statement, and it's based upon a complete misunderstanding of what real liberty means. What's wrong with it legally? Like, how how would you say there was the trouble with with Casey v. Planned Parenthood? I've I've heard you criticize this statement maybe a year or two ago on on the podcast. Um I would say from a legal point of view, it gets to the same point that I was just making about what liberty is. Liberty, and and the Dobbs opinion makes this point. Liberty might mean a lot of different things to a lot of different people. And if you define it up to a very high level of generality like that, well, then what rights could I not take outside the legislative process? Because it's important for people to understand and non-lawyers to understand the effect of a decision, like, for example, Roe and and and Casey, is to say that people cannot in the democratic process, in state legislatures or the federal legislature, that people can't make decisions for themselves through the the democratic process about abortion. So, Dobbs itself involved a restriction um limiting abortion after a particular point in time. Right? You couldn't draw the line at 21 weeks or that sort of thing. Judges were deciding how far along it should go. And that's what's wrong legally with that line because it just pulls everything up to such a high level of generality, gives all the authority to the judges. Yeah. And you know, that's the point of Cardinal George of Chicago, of happy memory, was a great mentor to me. He was like Scalia in my life. And he used to complain about judges having too much authority in our society and judges deciding these high moral matters. I remember he used to say, like, when the Obergefell thing was under consideration, he said, "I'm not so much for or against it. The court should not be deliberating on that matter. The nature of marriage is not a matter for a court to decide. It's a matter of the natural law." So, but generally he thought judges had too much authority to determine moral matters in our country. Well, I think, let's see, if if it's a free-floating thing, I so I do have to be careful not Yeah. to express express views, and and Dobbs did not touch Obergefell. Um but, I think what Cardinal George was reacting to is what we've been talking about, and the distinction between the approach to the Constitution that Dobbs took versus the approach that Roe took, which is putting decisions about what liberties are protected in the hands of judges rather than the democratic process. >> that's right. That's what was bothering him about it. Um Hey, let's go into sort of my area of interest, which is is philosophy of law. Um Remember years ago, just up the street here at Catholic University, uh when I was 20 years old, and I'm studying Aristotle's politics for the first time. And of course, Aristotle has this very high view of politics. It's a moral enterprise. It's the way the the polis kind of achieves great moral stature. And I remember this all being laid out, and I'm 20 years old from Chicago, and I said, "Yeah, but who picks up the garbage?" You know, when I think of politics, I thought of, you know, how do you manage? And the answer came back, "Well, that's a matter of the household for the ancients. That would be a matter of the private realm, you know." So, it's basically the nature of of law. I mean, what what is law, and what's the purpose of law, if you were to state that philosophically? So, because my engagement with the law does fall on the more practical side, I don't know that my answers will be satisfying because I don't engage as deeply with the philosophy of law as you do. But, I would say that in our society, I mean, certainly law is designed to help move society towards the common good, and I think Aristotle's ideas are what we all wish politics might be and law might be. I'm not sure, you know, the Supreme Court is right across the street from Congress. >> Yeah. Yeah. Query whether that's what people would would feel like observing what we do. But, law serves both a coordinating function, and I actually do think about the who picks up the trash, how do you know what side of the street to drive on? Um how do you know how laws are made, where authority is placed? It serves a coordinating function that enables all of the trains to keep running. Um our jurisdiction, you know, the the the limits of our authority, that's defined by the Constitution. Everything we've been talking about and who decides that's law's coordinating function. But behind that decision about who gets what authority lies a judgment about where decisions are best made in the democratic process or by neutral judges who have life tenure, who can do the hard things or or or make decisions without fear of not being able to support their families because they lose their job. Yeah. Um but hopefully the way that process works is it does move us all to a place where the health and safety of the American people are protected and we're moving towards the common good. That's a good way to to segue to because um some people express the classical versus modern view as in classical philosophy, law's purpose is really directive. It's directing us toward the good. So like for Aristotle, he wants us to be happy. That's what he's interested in, happiness. How do you become happy? He says, "Well, you need virtue to be happy. How do you get virtue? You need habit to get virtue. How do you get habit? The law. The law comes in to habituate you to act in a certain way which leads to virtue, which leads to happiness. So it's directive, right? Where for most of modern philosophy, it seems to me, law is more protective. So I have these basic rights and they're threatened in different ways and the law should exist to protect me from those threats. Um help me with that in your view, the the directive purpose of laws. Is a law there to make us good? I do not think that the civil law is there to make us good. Yeah. I do think of it as more protective. I would say, you know, the moral law or the law of the church >> Mhm. might serve that directive function. Hopefully it does serve that directive. I would not I would not understand the civil law that way. How about so Aquinas who you know, well he'll adapt Aristotle. Um that the positive law, so even things like, you know, drive 55 miles an hour, a particular positive law is grounded in the natural law which in turn is grounded in the eternal law of God. And so even something as simple as that, you know, it's a restriction on how fast you can drive your car ultimately has a a moral purpose. It's to it's to it's grounded in the natural law to protect life and so on. And then you think of Martin Luther King, right? Who explicitly references that in the letter from the Birmingham City Jail where he says, "What makes a law unjust is it's not grounded in the natural law and therefore it's repugnant to God." I've always found that fascinating how King deeply American figure obviously speaking on the steps of the Lincoln Memorial and and invoking our great, you know, civil tradition but yet has that very moral vision of of the law that is explicitly coming out of Aquinas. Mhm. Just curious how you'd see some of that fitting together. See, I do think that. I see that as a different thing than whether the law inculcates virtue or whether it's directive just because you know, the the driving 55 miles an hour, I can see that as a way to instantiate the natural law, but by the same token, I'm not sure that it necessarily cultivates virtue in that same way or certainly even Aquinas would say there's much that's not covered by the positive law. You know, I teach my kids not to gossip or not to talk back, but they're not violating any laws. Yeah, yeah, there's no law against that. No, it is interesting that King said that and you know, I I think Lincoln would have agreed with that. >> Yeah. Um I think there are distinct questions about how people in different roles respond to laws that are unjust or not. Mhm. Someone that I I reverence is the Catholic priest philosopher John Courtney Murray who thought a lot about these things, being Catholic, being American. And he construed the natural laws what he called articles of peace by which he meant, "Look, we live in this pluralistic society. America's famously pluralistic. We disagree about ultimate goods and religion and all that, but can we find some common ground in what we as Catholics call the natural law? Uh these basic moral intuitions that inform, you know society." Make sense to you or is that still a viable option on the table? Um it's a way of now how much we need peace in our society. Can we rely on the natural law or is that itself going to be too divisive? I don't know that I'm equipped to say whether we should rely on the natural law. What I will say is that I think the Constitution could help to that end. >> Mhm. I think there's an impulse. I mean, and if we think about free speech or freedom of religion, I think we see that um I see I think we can see those guarantees as a way in which they can function as articles of peace. So think about what's happening uh with respect to free speech rights in the UK. Yeah. Yeah, yeah. Um >> Yeah. People uh contrary opinions or opinions that are not in the mainstream are not being tolerated and they're even being criminalized. >> Mhm. Because of the First Amendment, that can't happen here. And so I think the First Amendment protects, guarantees, forces us to respect one another and to respect disagreement. There's a tolerance of different faiths, a tolerance of different ideas that I think would be we can see what would happen if you didn't have the guarantee to kind of hold that in place. And I do see that as a place where there can be articles of peace, so to say so to speak, in the Constitution. Yeah. You know, I'm serving currently on on the President's Commission on Religious Liberty and we've been meeting a number of times. It's been interesting. And it's given me this kind of renewed sense of the importance of the First Amendment. And and that you might say tensive relationship between the non-establishment clause. There's no official officially sanctioned, you know, religion. We're not a Anglican society or a Catholic society or whatever. At the same time, the guarantee of the free exercise of religion. And the tension, it seems to me, opens up the right space to be in. You know, Richard John Neuhaus who was a he was a disciple in many ways of Courtney Murray has that famous book The Naked Public Square which is is going against the idea that the public space is denuded of religion. So he's against that. But by the same token, he was against what he called a sacred public square whereby we have an officially sanctioned religion. What he wanted, he said, was the civil public square. A place where the religions felt free to come forward and to share their point of view and and exercise their religion, you know, publicly and to have a a conversation, a debate. And I I that's such an elusive goal, isn't it? I think we oscillate between the naked public square and oh if you're if you're against that, you must be for theocracy. But it's the First Amendment, the genius of it in a way, that non-establishment but free exercise. And that's the space we should be in. I'm pontificating now. I'm I mean, you know, your your >> you're you're Your point of view on that. >> You're describing it um in a great you're doing a great job describing it because you're right, there is a tension and it is difficult to figure out how you can hold these two things simultaneously. Um and a lot of the court cases are trying to to walk that line, but that is what we're trying to get at. If there were an established religion, then it would be very difficult to simultaneously guarantee freedom of religion because there would be one voice with which the government was speaking. Right. Um so we we need we can't have the established religion, otherwise you sacrifice the religious liberty. But by the same token, the religious liberty, it would become self-defeating if the logical end to it was to force everyone to see things your way, to try to turn America into a Catholic country, Christian country, Muslim country, what have you. Right. The paradox to me is from within my own Catholicism, I have a reverence for religious liberty. So as a Catholic, as well as an American, but as a Catholic I respect human dignity to such a degree that I'm not going to impose my religion on anybody. I'm not going to compel you to believe. And so it's my very Catholicism that that encourages me to be an advocate of religious liberty. Well, which is also the teaching of the church that we should respect religious liberty and never force faith on anyone else. >> We propose, we don't impose. Now, God knows go back over our history, we're we're not always brilliant at that, but that's the ideal that we don't impose but but propose. Um when you were at Notre Dame, were you were teaching constitutional law? Was that your focus or what was the focus? >> Among other things, I taught constitutional law. I taught seminars in constitutional interpretation, statutory interpretation and I thought I taught nuts and bolts classes like civil procedure and evidence. >> Yeah. Cuz cuz I'm intrigued by the the founders and by the founding. I remember the great Monsignor Robert Sokolowski who was another mentor of mine at Catholic U. He said "The coming together of geniuses at that moment is almost without precedent in in our history in human history." When you think of Adams, Jefferson Madison Jay Hamilton an extraordinary coming together of these figures. Um but as you as you look at the founding, some people, you know, will be critical of the American founding that it's a departure from the classical kind of moral tradition. It's more of a Hobbesian, Lockean, you know, rights-based approach as opposed to uh a virtue or or, you know, common good-based approach. How do you kind of assess that that decisive moment in our history when our whole government's invented? How do you read the founders? Well, it's been called the miracle at Philadelphia and I I think that's apt. I think the founders whatever the underlying philosophy was, and they disagreed. I mean, they were coming from from different places and background assumptions, um different places and faith backgrounds largely Protestant but you know I I think Jefferson's idea of faith was different than than others who lived in that generation who didn't participate in the convention. Um I think that what the founders gave us really is a work of genius. It's the oldest written constitution. Um it's survived for all of these years because it struck just the right balance, right? It struck just the right balance between leaving a lot to be developed by the future in the course of the democratic process but also singling out those things that were important. Didn't initially include rights protections actually. Initially included just the structure of government and then the Bill of Rights. Yeah, added in 1791. Because many people in the anti-federalists in particular thought that a Bill of Rights was necessary and so many of the state ratifying conventions gave their assent conditioned on that expectation that the guarantees of certain rights would follow. Yeah, it was a as you say a miracle. It was extraordinary. The coming together of figures but also the balance that they found was was and and the thing is it's worked. Sometimes when I read the theoreticians on the founding, you know, whether they're pro or con it's like okay, I get it. I understand the abstract ideas but you can't deny that the thing has worked. That they invented something which has endured now for 250 years and that's no small thing. That's not easy to pull off something that is that is theoretically informed but also practically, you know, useful. I think that's true. I mean I I do think it has lasted for a long time because Americans have continued to buy into it. We're coming up on the 250th anniversary of the founding of the country of of the declaration. Um I think if Americans lose that sense that we have these articles of peace if we want to borrow that term in this context lose their respect for the founding, lose respect for the constitution, there's no guarantee honestly that it will continue. Because what gives law force is its acceptance in a continuing society and the founders you know, those who drafted the constitution threw out the Articles of Confederation and and and did it. But if we want to think about what a miracle it was imagine today we're free to toss off the constitution and have a new constitutional convention and and come up with a document. It's hard to imagine our reaching the degree of consensus necessary to do that. I could talk to you all day about the law. I wanted to in the closing minutes we have talk a bit about your faith and your spirituality. I mean you're a devout Catholic and and you've made all the right distinctions try to make sure that you know, we're honoring the American judicial system and all that. But let's talk about your your faith a bit. So when you were raised in a Catholic family, went went to Notre Dame for law school, who are some of the spiritual figures, spiritual writers who really have influenced you? Let's see. So the first chapter books that I read were The Chronicles of Narnia. >> Oh yeah. Um and you know, like many Christians C.S. Lewis played a big role though not Catholic, you know, played played a big role. I just think those allegories give such good ways of thinking about faith and the kingdom of God and then his more adult books, you know, I loved to read too. Yeah. In terms of saints, I mean I I went to St. >> Catherine of Siena grade school. I always loved Catherine of Siena. My favorite was Therese of Lisieux. We have a daughter named Therese. >> How come? What do you like about Therese of Lisieux? I was captivated when I was young by how young she was when she made when she just completely gave her life over to the Lord. I was >> 15, she joins the convent. I was captivated by that and I was also, you know, like so many people I'm not unique in and revering her. Her little way is so accessible to so many. When I actually in the book mentioned that I minored in French and that I studied in France. It was actually Lisieux where I was. >> studied in Lisieux. No kidding. >> That's where I decided to go that summer and so I spent a lot of time in the gardens of the Martin home and yeah, I think those examples of faith were important to me. And then you know, as as a grown-up and I when I became, you know, I actually I I read Aquinas before I started law school. You know, as I as I I studied with John Finnis when I was at Notre Dame. Oh, you did? I did. Yeah. Yeah, natural law, natural right. That was the big book when I was going through philosophy. Yeah, I was fortunate enough to have him as a professor. Anyway, so as as I as I got older and I I read more grown-up things but I would say as a child and so one thing that we've tried to do with with our children is really cultivate in them a love for the saints because I do think they are great examples that can inspire our our love of the faith. Well, the Little Flower is a very important figure for me and I've talked about her a lot because at first I didn't really like her. I read her when I was in the seminary I think and I read the story of The Soul and I don't know, I thought it was too sentimental or something. But I had to kind of grow into her. I had to grow up spiritually to understand what she was doing. And I agree with you with the little way. I I've been teaching that for years. What's the opportunity of love in any given moment and you whether you are sick or well, whether you're rich or poor, whether wherever you are, there's always an opportunity to love. And that's extraordinarily powerful bit of spiritual advice, you know. So I I've tried to incorporate that in my life as much as I can. That scene where she's sitting with her sister nuns and there's that irritating nun >> who is there and it's it's like she's doing everything she can to forbear. I've thought of that. >> more obnoxious. >> More and more obnoxious and then at at the end of it all for that nun to think she had been Therese's favorite >> Yeah. is really striking. So it's something that I've thought about a lot in my own life and an example that I use with my children especially when they're having difficulty tolerating one another. I agree with you about Therese. She's marvelous. How do you pray? What's your do you have a rhythm of prayer or a style of prayer? What's how do you pray? I think so I've prayed different ways at different phases of my life. I think in an ideal situation and I think when I was a law professor and my life was quieter, what I tried to do was more like a lectio divina. Yeah. Um I have found increasingly and this and this is my my own flaw. I should find a way to be able to push out distractions and and still sit down and do that. Now I tend to do more reading reflections, you know, I we get the Magnificat. I'll read the daily Magnificat. I'll listen to a reflection on Halo because I I have had um my personal struggle in these last couple years has just been an ability to quiet my mind so that I can pray in a very deep and and focused way. So it helps me if if my mind is wandering to be able to focus it on reading something and and and the task at hand. The rosary does that for me. Uh my generation wasn't encouraged to pray the rosary. When I was going through seminary, it was kind of like your grandmother prayed the rosary. >> right post-Vatican II? Yeah, I would have been going to the seminary like in the '80s, you know. But I found as I've grown older that the the rosary is a marvelous prayer in so many ways but that's one thing it does for me. It kind of like just calms the mind that's leaping all over the place and gives you focus. Or the Jesus prayer, you know, Lord Jesus Christ, son of God, have mercy on me a sinner repeated over and over and over again. Has that same kind of effect on me. Um let me ask you one final question. If if you're giving advice to a young enthusiastic Catholic who wants to get into public life, what would it be? Wants to get into government, working here on Capitol Hill or the Supreme Court, what advice would you give that young Catholic? Well, I guess I should have said when you when you asked me about who my spiritual heroes Yeah. are that Ignatius of Loyola is one and if a young Catholic asked me that, I would give advice that I have given many times to my own children, to law students, etc. I just had a conversation. I was out at Notre Dame for an event recently and and had a conversation with a young law student about this. Is to discern first what are you called to do? Yeah. Um and I think, you know, Ignatius of course is is is a master of that because I think a lot of people want to get into public life for the wrong reasons. >> Yeah. Um if you do feel like this is a vocation and something you're called to do I think it can never be the most important thing. Hm. And so I think being grounded in your faith and who you are and being right in the Lord so that you're not tossed like a ship everywhere because there are enormous pressures. I can only imagine that the the pressures that, you know, are felt by those across the street in Congress. I mean I certainly feel them here. >> Yeah. But I think being grounded not, you know, as we've discussed, not because my faith informs the substance of the decisions that I make. It emphatically does not. Um but I think it grounds me as a person. It's who I am as a person and so it's what enables me to keep my job in public life in perspective and and remain the person who I am and continue to try to be the person I hope to be despite the pressures of public life. >> Mhm. Well, Justice Barrett, it was a delight to be with you today. Thank you for taking so much time and I hope everybody reads your book. It really is wonderful, Listening to the Law. God bless you. God bless you, too. [Music]