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Justice Amy Coney Barrett

Sep 08, 20251 hr 18 min
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Summary

Supreme Court Justice Amy Coney Barrett offers rare insights into her judicial approach and personal experiences, from her "outsider" appointment to the challenges of public scrutiny and family life. She explains her commitment to originalism and applying the law without personal bias, even in controversial cases like Dobbs and the death penalty, while also addressing the court's collegiality, the Dobbs leak, and the importance of institutional trust. Barrett clarifies her independent decision-making, which has often surprised both conservatives and liberals, underscoring her belief in the Constitution as the nation's unifying framework.

Episode description

When Amy Coney Barrett was appointed to the Supreme Court, she was in some ways an unlikely choice. She was living in South Bend, Indiana, not New York or D.C. She went to Notre Dame Law School, making her the only justice that didn’t go to Harvard or Yale. She’s the mother of seven kids. And, at the time of her appointment, she’d largely spent her career as a professor, with just under three years on a federal appeals court.

To put it bluntly, Amy Coney Barrett was an outsider.

But people close to President Donald Trump saw something: She was an originalist. A former clerk for Antonin Scalia. A devout Catholic with real intellectual bona fides. And a rising star in the conservative legal movement. In short, she was the ideal jurist to replace the late Ruth Bader Ginsburg.

After her 2020 nomination, the left called her inexperienced and a religious zealot. They said her confirmation hearing was rushed, and that she would undermine trust in the Supreme Court.

But with a 52–48 vote, just six weeks before the 2020 presidential election, Barrett was confirmed—without one Democratic vote. She took her seat at the highest court at just 48 years old, and became only the fifth woman to ever serve on the Supreme Court.

Considering how our nation’s most powerful people stick around into their 80s, she’ll likely have a major impact on American law and life for decades to come.

We’re now five years into her time on the bench. And in a turn of events, CNN ran a piece last year titled “The Last Best Hope for Supreme Court Liberals: Amy Coney Barrett. Newsweek ran Amy Coney Barrett Is Liberal Justices’ ‘Best Chance’: SCOTUS Analyst ” and The New York Times ran How Amy Coney Barrett Is Confounding the Right and the Left.”

How did we get from “dangerous, religious zealot” to “last best hope”?

On one hand, Barrett has done what one would expect of a Republican appointee: voting to overrule Roe v. Wade; voting to outlaw affirmative action; and voting against the administrative state.

At the same time, she has voted with liberal justices in some of the most pivotal cases—and in Trump-related cases, she is the member of the conservative supermajority who has sided in Trump’s favor the least. 

In short, Barrett surprises. She just wrote a new book called Listening to the Law: Reflections on the Court and Constitution, where she makes the simple but salient points: Her job is not to like all of her decisions, nor is it  to please the media or a president. It’s to follow the text of the Constitution, full stop. 

On Thursday night Bari sat down for a rare conversation with Justice Barrett at Lincoln Center’s Alice Tully Hall in New York City. 


Bari also asks her about key cases like Dobbs v. Jackson Women’s Health Organization, the birthright citizenship case, nationwide injunctions, the shadow docket, transgender minors getting medical treatment, her willingness to dissent with liberal justices, her response to people who call her an “evil DEI hire,” and so much more.


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Transcript

Intro / Opening

Today's episode is brought to you by the Foundation for Individual Rights and Expression, FIRE. FIRE defends the free speech rights of all Americans, regardless of their politics. They've stood up for concerned parents at school board meetings. residents silenced at town halls, and college students punished for speaking their minds. No matter how chaotic the culture wars get, FIRE stays laser-focused on stopping censorship wherever it shows up.

The Free Press was founded on a very simple idea, that honest, open inquiry is essential to getting to the truth. And that's why we're grateful to have fire on our side and on the side of every person's First Amendment rights. FIRE has secured major free speech victories on campus, in courtrooms, and in the culture at large. If you're listening to Honestly, you already understand why free speech matters.

So support FIRE's right to protect it with a tax-deductible gift at thefire.org slash honestly today. Again, that's thefire.org slash honestly.

Amy Coney Barrett: An Unlikely Justice

From the Free Press, this is Honestly, and I'm Barry Weiss. When Amy Coney Barrett was appointed to the Supreme Court, she was in some ways an unlikely choice. She was living in South Bend, Indiana, not in New York or D.C. She went to Notre Dame Law School, making her the only justice currently on the court that didn't go to Harvard or Yale. She's the mother of seven kids. And at the time of her appointment...

She'd largely spent her career as a law professor. She had just under three years on a federal appeals court. To put it bluntly, Amy Coney Barrett was an outsider. But people close to Trump saw something. She was an originalist, a former clerk for Antonin Scalia, a devout Catholic with intellectual bona fides, and a rising star in the conservative legal movement.

In short, she was philosophically the ideal jurist to replace the late Ruth Bader Ginsburg. After her nomination and during her appointment, Many people, including many Democrats, called her inexperienced. They called her a religious zealot. They said her confirmation hearing was rushed and that she would undermine trust in the court.

But with a 52 to 48 vote just six weeks before the 2020 presidential election, Amy Coney Barrett was confirmed without a single Democratic vote. She took the bench at just 48 years old and became only the fifth woman. to ever serve on the Supreme Court. Considering how our nation's most powerful people tend to stick around into their 80s, or maybe even longer, she'll have a major impact on American law and life for decades.

We're now five years into Amy Coney Barrett's time on the bench. And in a strange turn of events, here are some of the headlines that have recently run about her. CNN ran a piece last year titled, The last best hope for Supreme Court liberals, Amy Coney Barrett. Newsweek ran a piece saying Amy Coney Barrett is the liberal justice's best chance.

And in a recent piece, the New York Times went with how Amy Coney Barrett is confounding the right and the left. So how did we get from dangerous religious zealot, even handmaiden, to the last best hope? for the court's liberals. On the one hand, Amy Coney Barrett has done what one would expect of a Republican appointee to the court. She voted to overturn Roe v. Wade. She voted to outlaw affirmative action.

She has had many votes against the administrative state. At the same time, she has voted with the liberal justices in some of the court's most pivotal cases. And in Trump-related cases, she is the member of the conservative supermajority. who is cited in Trump's favor the least. In short, Amy Coney Barrett surprises. And she's just written a book called Listening to the Law, Reflections on the Court and the Constitution.

where she makes a simple but salient point. Her job is not to like all of her decisions. It's not to please the public, the media, or a president, but to follow the text of the Constitution. On Thursday night at Lincoln Center, I sat down for a rare conversation with Justice Amy Coney Barrett. I asked her about many things, including key cases like Dobbs, like the birthright citizenship case, nationwide injunctions, the shadow docket.

The case Scrimetti about transgender minors getting medical treatment. Her willingness to side with liberal justices at times. Her response to people that call her an evil DEI hire. and whether her writing is becoming more or less like Scalia's. That and so much more. This was an incredible conversation in front of a packed house. A quick break, and we'll be back live from Lincoln Center with Justice Amy Coney Barrett.

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Well, in test after test, OCI customers report lower latency and higher bandwidth versus other clouds. This is the cloud built for AI and all of your biggest workloads. Right now, with zero commitment, try OCI for free. Head to oracle.com slash honestly. That's oracle.com slash honestly. This is like, this is a little bit like the free press prom. I only wish we were wearing our TGIF socks on stage.

Barry, you're saying that because she knows that I have a pair of TGIF socks that I debated wearing. She has a very good pedicure, though, and it would have taken away from it. Well, suffice it to say the media does not quite know what to do with the woman sitting across from me. Before her confirmation to the bench, her ideas were described as, quote, a threat to all of our rights. That's the New York Times. She was called a handmaid.

That's the Washington Post. A far-right ideologue, a pawn of the rich, a theocrat, a zealot. You guys all remember and you get the picture. Now here we are five years into her time on the bench, and the New York Times is now saying Amy Coney Barrett is confounding the right and the left. CNN writes that the last best hope for the Supreme Court liberals is Amy Coney Barrett. Newsweek is saying that Amy Coney Barrett is liberal justice's best chance. So which is it?

That is the point of tonight's conversation. Tonight, we are all so honored that we get to hear from Justice Barrett herself, and it will be up to all of you to decide whether the legacy press from 2020 is right or the legacy press from 2025. Suffice it to say, we are all so happy to be here with you. So thank you so much for joining me.

I also wanted to thank, there's a bunch of other incredible constitutional scholars and judges here. We have Judge Hardiman here from the Third Circuit. Judge, where are you? He's here. We have Judge Manashi and Judge Park from the Second Circuit, and I just, please do not judge me when I inevitably mispronounce voir dire somewhere in this conversation.

Personal Journey to the Supreme Court

Okay, so let's start with your newly published book, Listening to the Law. You open that book with the description of a photograph. It's a photograph taken of your great grandmother's home on Green Street. in New Orleans. It's a very small home. I think it had three bedrooms, and yet she lived there with no husband. She was widowed. and 13 children, and this isn't even to mention the relatives and homeless men that were sleeping under the house. It was a raised house in New Orleans.

Tell us about that picture and your great-grandmother and why you keep that picture on your desk. I will. I do want to say thank you so much for having me, Barry. I'm a huge fan of the free press and so excited to do this tonight. Yes, I open the book with the story of this picture. I keep it on my desk at home. And the story behind the picture is that for my father's 70th birthday, my siblings and I rented a party bus.

couldn't think of what to do to celebrate. We decided to do a This Is Your Life tour around New Orleans. And one of the stops was my mother's grandmother's house on Green Street. And at that point in my life, I have seven children and our youngest son has Down syndrome. I was feeling very overwhelmed.

And when I stood in that house and saw its size and thought about how much she fit into that house and how much she handled and fit into her life, I thought I should stop feeling sorry for myself. So I... put a picture that I took on that day in a frame and I keep it on my desk at home and have for the last 10 years. My father just turned 80.

And I look at that picture for inspiration, thinking about a woman who fit a lot into her life. And she has legendary status in our family for many reasons, and that is one.

You fit a lot into your life. You have seven children of your own. Youngest one has Down syndrome. And you write in the book about when you got the call, this shocking call. The feeling wasn't one of elation. It was one of... pit in your stomach take us back to that moment and ultimately if you could talk a little bit about how you came to this decision which obviously transformed your life and has transformed the life of your family yes what I do

is a great privilege and I'm honored to serve the country. To me, it really is service. I think anybody who has paid attention to confirmation hearings in the last 25 or 30 years knows they're not a pleasant experience. And so I knew that if Jesse and I said yes to this, There was going to be a lot of difficulty, and there was going to be a lot of change. I knew the confirmation process was going to be very difficult.

I wasn't exactly sure what kind of attacks I would face. I had some ideas, and I knew they would come. And that's really hard. I mean, it's hard to be attacked publicly, as you well know, Barry. That was very difficult to face. It was also hard to think about leaving the life that we had. You know, I didn't love the idea of living in South Bend, Indiana when we first moved. I loved Notre Dame, and I loved teaching there.

but it was a small midwestern town and i don't like the cold but we had really grown to love it after being there for, at that point, 17 years. And so the thought of moving, giving up, being proximate to our friends, giving up being proximate to Notre Dame, which plays a big role in our lives, it was hard. And really just the thought of...

Facing the public criticism and being in the public eye was tough. And you write in the book that your husband Jesse said, we can do it, but you have to burn the boats. Yeah. My recollection of the night we decided to do it, we were in our room in our house in South Bend, pacing back and forth, and Jesse said, I'm open, I'm all in, but there's one condition. If we do it, we have to burn the boats.

We can't look back. If you're confirmed, in the middle of the confirmation process, it could get ugly. We can't pull back. If you're confirmed, no second guessing because then we're just going to be miserable because we knew there would be difficulties to come. I want to talk about the Kavanaugh hearings and the Bork hearings and the Clarence Thomas hearings in a minute. Let's talk about yours for a moment.

Navigating Public Criticism and Confirmation

The media called you a lot of names. Inexperienced, they called you a zealot. I mentioned some of the things the press called you. Dianne Feinstein notably said that the dogma lives loudly within you, insinuating that you would put your religious beliefs ahead of the law. And Chuck Schumer said that your confirmation was the most rushed, the most partisan, and the least legitimate nomination to the Supreme Court in our nation's history. I mean, you have lived through the confirmation of other

justices appointed by Republican presidents. Did any of this surprise you? You mean the criticism? When Dianne Feinstein said, the dogma lives loudly within you, did that affect you? So she said that in my Seventh Circuit hearing. And, you know, honestly, I will say that Senator Feinstein was very warm and nice to us when my family was there for the hearing. It surprised me that she said it, and I knew that that...

Echoes of that same criticism would surface in the Supreme Court process. So I knew that I would face it. And yeah, I mean, I guess I wasn't surprised. Someone who was very experienced in Washington told me when my name... appeared on the list, that if I was open to it, I had to be prepared. He said, I'm just telling you, I'm looking at you, I'm telling you what's going to happen, and you have to be prepared for a text on your face.

and on your family, on your adopted children, and all of that was right. Taylor Swift says she's been a public figure so long that it takes a lot to hurt her. Do you agree with that? And are you a Swiftie? Taylor Swift is really tough. I agree with that. Are you? And are you a Swiftie? Yes, I do agree with that. I don't think you could do this job. I think the biggest thing about doing this job is you have to have a willingness to be unpopular, and you have to have thick skin.

And I think that the criticism that I received during my Seventh Circuit hearing, including the dogma stuff about my faith, Toughened me up and prepared me for facing the Supreme Court process. But yeah, I mean, you have to tune it out, and you have to let it roll off your back, and you can't let it get in your head. And you listen to Taylor Swift's music. And you listen to Taylor Swift's music, yes. Okay, so...

Court Collegiality Amidst National Upheaval

Your confirmation hearing was paled in comparison in terms of just the vitriol and the intensity of Brett Kavanaugh's in 2018. And, you know, some people regard that as just the politics of personal destruction. And he's not the only justice that has received that kind of treatment. There was Claris Thomas. There was Robert Bork. Do you think it's fair to say that...

people, justices that are nominated by Republican presidents tend to get more scrutiny than Democratic ones, and if so, why? Let's see. I don't... I think that the hearings that you mentioned tend to be the ones that get talked about when brutal confirmation hearings come up and the politics of personal destruction is discussed.

I don't know. I mean, I'm loathe to make a comparison because, you know, I haven't walked in those other shoes. I certainly think Brett Kavanaugh is a friend and a good man. And, you know, I watched what he was going through. through with, I thought it was extremely painful. You came onto the bench at a moment in this country of, let's just say, intense political, social, cultural upheaval.

2020, we had experienced some of the worst rioting in decades. Some people, including the president, thought the election was rigged. Others were talking about Bill Gates putting microchips into our vaccines. Some people said that... COVID was spread by 5G. Other people at the time believed that Hillary Clinton killed Kobe Bryant. It was kind of a weird time. How did that impact you? And did that feeling that I remember as being one of just...

It was just like summer of 2020 was just like the hottest time. That time just felt like a time of profound unraveling. How did that impact you and sort of the moment where you ascended to the court, if at all? I think it was a mixed bag. I mean, I think there were some things that were hard about it, because as you say, those are not months that I think, or gosh, it's extended longer than months, a time that any of us would want to repeat.

I think for purposes of the confirmation process, I will say there were some benefits to it. Because COVID meant, I don't know if you remember during Brett Kavanaugh's hearings, people were in the hearings and dressed as handmaids and erupting and protesting during the hearings themselves. My hearings were closed because of COVID. And so there were fewer opportunities for big public protests rattling me in the process. You have to moot.

when you're getting ready for a confirmation hearing. And I didn't have opportunities. I only had one opportunity for a big moot. Usually you have a bunch, but because of COVID, I didn't. But in one of those small moots, one of the practice things that they did was we were around the table, they were asking questions, and then all of a sudden someone just opened the door randomly and ran in and started screaming.

And that was to get you used to the possibility that someone might do that in the hearing. What was your reaction when it happened in the practice? What was going on? But I didn't have to face it in the actual hearing because COVID kept the building closed. So, you know, there are some things about it, I will say, that did make it a bit easier.

But the feeling of that time of just families being even more like, you know, you think of people think back to the moment. And of course, that famous photograph of Scalia and RBG on an elephant. I think they're somewhere in India, right? incredible picture and they look back to that time in American life with incredible nostalgia this feeling of wait like you can actually

love people that you disagree with. You can love people that you judge, you know, that you can look at a case differently. And in fact, you can go to the opera together and have New Year's together and love each other. And that time just feels

so very far away. Because you write in the book about the kind of comity and collegiality that you experience from the moment you join the court. Is the court maybe the one place in American life left where that is still the case, or has it infected the court too?

I don't think that Justice Scalia and Justice Ginsburg's friendship needs to be just a relic of the past. And I do think the court is the place, and that's one of the things I try to showcase in the book, where you can have respectful disagreement and debate about ideas. but still have warm personal relations. And so the thing I describe in the book is when I began, and it was a rough time, as you say, that moment.

All confirmations are controversial these days. Mine was too. But I walked into the court and was sworn in in a very awkward... ceremony because everybody was socially distanced, and so the Chief Justice was holding the, you know, reading the oath, and I was standing back, and Jesse was holding the Bible, you know, with the appropriate number of feet in between us.

From your husband. No. He was in your pod, I guess. He was in my pod. No, from the chief. So it was very awkward. But Justice Sotomayor sent up bags of Halloween candy for Jesse to take back to South Bend for our children. I didn't have assistance. I had no office supplies when I walked in my chambers, and different colleagues around the building found out, and one dispatched his assistance to come staff my office. They sent paper and pens so that I could...

actually start getting some work done because arguments were a few days away. And really, that is the experience at the court. We have lunch together. We interact. We have warm relations. You see on the page a lot of fiery descents and a lot of fiery writing.

But, you know, debate is the lifeblood of the law. You know, you have to have their parties on either side making arguments on either side. And that happens in cases with justices, too. But I do think the court is a place where we can model the way to disagree that you can have different ideas.

Love for the Constitution and Judicial Role

In your book, Listening to the Law, you talk about your love of the Constitution. And I think a lot of people in this room appreciate the Constitution. I don't think they think about loving it in the way that you express it in this book. And you talk about it being the court's birth, I loved this, the court's birth certificate. Tell us about...

Why you love the Constitution? It's a cheesy question, but make the case for it. It's probably cheesy for me to say I love the Constitution. You know, the Constitution, we have the oldest written Constitution in the world. And Abraham Lincoln called it the political religion of our nation. And we don't share a common religion. America is a melting pot.

We're huge. I mean, I would tell my students when I would teach constitutional law and we would talk about federalism and the fact that so many different states, you know, have different identities. Our land mass and our population. distinguishes us from many of the countries that we otherwise consider our peer countries. But the Constitution unites us. We all have that much in common, the ideals expressed in the Constitution.

And the Constitution and the framework of government that it's set up is the skeleton and the structure that's held our country together. And the Constitution is not yet 250 years old, but America is 250 years old next year. We're coming up on its birthday. And the Constitution is the common thread. And it has lasted so long because I think it's been...

called a miracle at Philadelphia, the Constitutional Convention. And it was a miracle. And America, I think, has been a miracle. There's been a big debate in American life in the past while, and I feel that it's heated up, especially over the past few years, about what America... Is America an idea? Is America just purely a nation? Where do you fall on that? Is America an idea? No, I think America is more than an idea. I think America...

is its people, too. I think the Constitution set out the contours of what America is. I mean, you can't have a country that's comprised of just an idea. It has to have... But is the thing that makes it distinctive from nations based on blood and soil or a common ethnic history or something, you know, all the things that, you know, you think about Japan or is the thing that makes America different that? creed, the constitutional creed. I think that's one of the things that makes it different.

But it's not just the idea itself, but I think it's the American commitment to the idea, to the rule of law. If we had just the idea and we all thought it was a great idea, you know, that would not a country make. But I think it's our longstanding commitment to that idea, which is expressed through the flesh and blood people who pour their lives into making that idea a reality that comprises the country.

You write in the book about, I've actually never been in the Supreme Court, but you write in the book about the freeze sort of above you or higher up in the room and pictured on it are some of the most important lawgivers in. human history. There's Solomon, there's Moses, there's Hammurabi, there's Confucius. And you say that the role of the nine is different from all of those famous lawgivers. And I want you to explain why.

I talked specifically about King Solomon because everyone knows the story of Solomon adjudicating the dispute between two women who claimed the same baby. And he brilliantly says, we'll divide the baby in half and you can each have half, knowing that the real mother would never want to see her child divided. And he was right. And Solomon's wisdom comes from within. And we all trust Solomon as a judge.

Because of the wisdom that he had from within and I think when people think about the nine justices on the court when people think about judges generally federal judges Like my friends who are here tonight I think that people imagine that judges function like Solomon because those are the stories with which we are familiar. You know, Confucius, Hammurabi, Solomon, King Louis IV. I just think that those are the people who we imagine.

But federal judges are different. We can't decide what's right just by our own lights. We have to apply the law. And so it looks different. And so I think a lot of times people... criticize decisions that the court has made from the wrong reference point. Because they're asking, was this the just thing in that Solomon sense? Was this the fairest result?

But sometimes I think the result that the law demands isn't necessarily fair. Sometimes the result that the law demands... should be changed, but it's just not the judge's job to change it because the Constitution... curbs federal court authority, and it gives them a very defined role to play that is far less freewheeling, say, than that of King Solomon. Will you talk about a specific example of...

Personal Conviction vs. Legal Duty

We talk about in 2022, this case comes before you where the Supreme Court is considering a death penalty appeal by one of the Boston Marathon bombers. And you talk about the conflict between your own personal conviction and your decision in the case. Yes. And another thing that came up in my confirmation hearings, when I was a law student, I wrote a law review article about the death penalty. I'm Catholic, which I don't think is a huge secret.

In that article that I wrote, I expressed with my co-author the view that the death penalty is immoral. And that is the view of the Catholic Church, and we describe that view in this article. But that's my view, and it's not my role to impose my view on other people. And the law, federal law, authorizes the death penalty.

And in the Boston Marathon bomber case that you're talking about, the death penalty had been imposed, and we had a case come before us seeking review of some aspects of the trial. And what I talk about in the book is, it's not my role as a judge to say, do I think the death penalty should have been meted out here? Do I think that the death penalty is just?

My role is simply to say, was the law followed? And if I feel like I can't apply the law because of my moral view about what the law requires, then I should recuse. But I shouldn't cheat or try to bend the law. In fact, I've sworn to uphold the law. And I did not recuse, and I don't feel like simply saying what I said in that case was that I think the law was followed in the imposition of that death sentence. I didn't feel like that triggered a need to recuse. I felt like I could do that fairly.

But that illustrates that sometimes what the law requires is a conflict with the judge's personal beliefs. But in that circumstance, if the judge is to sit on the case, it has to be the law that carries out and the law that the judge applies.

But help people who are not in your world. Why not recuse in that situation? I think that's a very personal decision for every judge. I mean, I think for me and the way I think about it is... it's it's the let's see it gets down in the weeds in the catholic church there's a doctrine called cooperation with evil

And it really has to do with how closely involved you are with carrying out the wrong. And so in my view of my moral obligations and my judicial obligations, In my view, reviewing that sentence for its consistency with the law or not isn't so close that I felt like it triggered a moral obligation on my part to have to recuse.

Stare Decisis and the Dobbs Decision

Let's talk about some of the biggest cases that you've heard while you've been on the bench. You've heard hundreds of cases. You've written many majority opinions. is in the minds of many, many people who are not close Supreme Court watchers is, of course, Dobbs, the case that overturned Roe v. Wade. And you defended the decision by saying that Roe just simply had no basis to declare abortion a constitutional right. And the broad, I would say, conservative legal position is that

The right to abortion was basically created out of thin air in 1973. And some liberal scholars agree, even some liberal scholars who are pro-choice. I know Akhil Amar, I think he might be here. He's been on my podcast explaining that. But what Roe did have is 49 years of precedent. So how does the court determine when longstanding legal precedent should be overturned and in as colloquial a way as possible?

explain that decision okay and then we can get deeper into catholic doctrine later in the hour all the easy questions barry So there is a doctrine called stare decisis, and you probably heard that doctrine discussed in the context of Dobbs and some other cases. It comes up pretty frequently. And that doctrine stands for the principle that cases, generally the court lets cases stand. You know, it means let the thing decided stand, let it stand. So the court follows precedent, but no justice...

ever in history that I'm aware of has thought that precedent should never be overturned. And this doctrine that's called stare decisis accounts for that. And there are a series of factors that the court applies in deciding whether or not a precedent that is erroneous should be overruled. You know, the starting point is that it has to be an error. Obviously, this only matters if, in fact, the decision is wrong. Being wrong isn't enough. You have to consider a series of other factors like

Has this caused problems? Has it been disruptive to the law? How much reliance is there on this decision? Will it disrupt reliance interests? Has this decision been undercut by subsequent developments? Those are the kinds of considerations the court takes into account. And so in Dobbs, the court spent a long time... devoted a lot of the opinion to marching through those stare decisis factors and explaining why the legal landscape, the developments in the law post Roe and up to Dobbs.

cut in favor of saying that this was an error that ought to be corrected. Okay. The complication, I guess, is that not legal complication, but civic complication. Right. Social complication is that A majority of Americans believe that some kind of abortion should be legal. And the constitutional scholar Alexander Bickle basically says that the court should never be the slave to public opinion. But if it ignores it too often, it risks...

How should justices and judges weigh the Constitution and what the law requires against public opinion? I'll say one thing really quickly about the public opinion and abortion. I think that's exactly where the decision should lie. And I think that post-Dobbs, I mean, essentially what, Dobbs did not hold that abortion is illegal. Dobbs said that the decision belongs to the people, and a lot of constitutional law is who decides.

And through that, to the political process, where the people can express their views, and there are all kinds of decisions to be made that are better left to the democratic process, like... How you draw lines, at what point in a pregnancy can abortion then be off the table? All of these kinds of questions. Parental consent, lots and lots of...

policy decisions to be made that dobs through to the political process. So I think the fact that people have opinions isn't determinative because it's a question of how they should express them. Now, the bigger question that you're asking, too, is just how should the court take that into account? I mean...

I think you kind of have to steel yourself to political or to popular opinion when you're making decisions. I mean, I think Bickle is right. You know, the court shouldn't do things that are wildly disruptive, right? But the court... You know, Brown versus the Board of Education was wildly disruptive. I think that the court has to be prudent. I think prudence plays a part in deciding, you know, when to overrule precedent prudence.

And I think you can see that. Bickle has a lot of articles and books where he points out times that the court has exercised that prudence in ways in which it has. But I do think that it's pretty risky to take... popular opinion into account when you're deciding cases. One of the things that was so shocking about the Dobbs decision was the leak ahead of the decision.

The Dobbs Leak and Court Security

I mean, there was an investigation into it. The leaker was never found. But the reason it was so shocking, of course, is that this is the Supreme Court. This is supposed to be the most high trust, high integrity place. I know you can't speak to the internal discussions that you've had, but if you can characterize a little bit how the leak impacted the workings of the court, if at all, I think people would be really interested to hear that.

Yeah, the lake was a huge breach, breach of trust, and it was shocking. The court is pretty small. I mean, it's the smallest branch of government, and not just because there are only nine justices. Just the number of employees within the court is so much smaller than any executive branch of Congress. I mean, it's a very... tight ship, small operation, and we call ourselves inside the court family. And that encompasses all the employees.

And the court operates in an atmosphere of trust. And so, of course, the leak did breach that trust. I think in terms of how I would say that. I personally have worked hard not to let it change or make me paranoid, change the way that I relate, because I think one of the beautiful things about the way that the court... operates is the trust that we have. But, you know, it's you. You're looking over your shoulder.

We're not able to identify the person who leaked the draft, but we have taken measures to change safety procedures to try to improve security. And we haven't had something like that happen again.

Transgender Minors and Suspect Classifications

Okay, let's talk about some of the other big cases. One of them is Scrumetti. And in this case, the court upheld a lower court ruling which banned some medical treatments for minors that identify as transgender. And in that case, you wrote a concurrence saying that The court actually didn't go far enough arguing, and this is your argument, that trans people aren't a so-called suspect class, essentially a disadvantaged minority covered by the 14th Amendment.

Can you explain your reasoning here in a way that civilians can understand? Yes. So suspect class in the law is more than disadvantaged. It's a very unique... and it triggers what's called heightened review. Yeah, it's a protected class. It triggers. It means that it's much harder for the legislature to regulate. or draw lines that affect this protected class because courts will then engage in what's called strict scrutiny.

which makes it difficult or heightened scrutiny, typically strict scrutiny, sorry for the jargon, which will... often lead to the statute being held unconstitutional. So it makes it very difficult to regulate. And the classic suspect class, this flows from the 14th Amendment's Equal Protection Clause, is race. Race, when the legislature draws lines based on race, it triggers strict scrutiny, and that's a high bar. Sex classifications also trigger heightened scrutiny.

So far, it's a pretty narrow group. It's just those because legislatures have to draw lines all the time. They have to categorize.

And so the court has not added other classes. I mean, it's turned down worthy candidates of groups that are disadvantaged in many ways, like the mentally disabled and like the poor. And the reason to stay... to stay your hand as a judge or that the court has stayed its hand is that creating new suspect classes does make it difficult for the political process to solve problems and draw lines.

in sensitive areas. And I think there are, as we can all see, and as the court addressed in Scrimetti, many complicated policy questions that surround the transgender debate.

And one of the issues in the case, which the majority didn't reach, we didn't need to reach it to resolve the case, is this question of whether any legislation that regulates the trans community whether it comes it's medical treatments for children or you know you can just think of the headlines and think of the number of things Triggers heightened scrutiny so that it makes it more difficult to serve for it to survive judicial review and I

argued that it should not, that courts shouldn't give it the kind of heightened review that would put it on a path to unconstitutionality. Okay, I think the way a lot of... non-lawyers understood that case is the question of when the state should be able to sort of supersede the will of parents. Some people compared this, and you might reject this comparison, to the idea of vaccine exemptions.

Parents can exempt their children from getting vaccinated on religious grounds, and they say, shouldn't it be up to parents to decide this? In your view, is that relevant or not really relevant to the actual case? So the case didn't present that question. Right. So below the case presented two questions. One was whether it interfered with a parent's right to direct medical treatment.

their children, the court did not address that question in Scrimetti. The question that the court addressed is whether it discriminated on the basis of sex to permit transgender or to permit children to obtain... hormones for purposes of other medical conditions, but not for purposes of transitioning. So it was a different, it wasn't the parental claim. The parental claim was addressed by the court below, but we didn't address that claim.

Presidential Immunity and Universal Injunctions

Another huge case recently is Trump versus the United States, of course, in which the court was asked to rule on the following question. Can presidents, I'm sure there's legal jargon, but the way I understand it. Can presidents be tried criminally after they leave office for acts related to their official duties? Not shooting someone on Fifth Avenue, but their official duties. And you...

voted. You said that presidents have this level of immunity. In other words, they can't shoot someone on Fifth Avenue and be immune from the consequences of that legally, but they can't be prosecuted for their official acts. What gives the president those special privileges? So the way that I regarded it is that it's not that the president has special privileges.

As I say it, it was a question of separation of powers. It's what questions Congress or what conduct by the president that Congress, can Congress criminalize? So for example, I'll just use an easy example. the Constitution gives the president the pardon power. If there were a federal statute that somehow made it criminal,

or illegal for the president to exercise the pardon power, then the president could not be prosecuted for that because it would violate the separation of powers. So official acts, when you think about acts that are committed to the president... by virtue of his office, sometimes, is what the opinion held, I saw it slightly differently from the majority, but there are some times in which it would inhibit...

the president's exercise of the powers that the Constitution lawfully gives him for him to be subject to criminal liability for exercising those powers. But that is a narrow category in my view, and it does not encompass shooting someone on Fifth Avenue or unofficial acts. The president would be held to account for such a thing. The president would be held to account for such a thing. I just want to make sure about that. Yes. Yes. There are two kinds of dockets.

at the court. One is traditional. That's the one we all hear about. This is called the merits docket. This is for people like me who learned a lot ahead of this interview. And then there are cases that are decided outside of the normal sort of fully brief deliberative process. And this is called the emergency docket. A lot of people call it the shadow docket in which there generally is.

an oral argument. Am I characterizing this fairly so far? Okay. The recent case concerning birthright citizenship, Trump v. Casso, which was brought, of course, after Trump issued this executive order saying that babies born on American soil to illegal immigrants were not citizens. And this was a case that was obviously a huge explosion, and it was adjudicated.

at the shadow docket. And given its importance and sort of the amount of precedent in a case like this, why was it heard there rather than in the merits docket? So we don't get to pick the track that a case is on when it arrives to us.

So the cases that arrive on the emergency docket are cases that are in an early posture, an interim posture. So they have not been fully decided by the court below. So our normal docket, you know, the way that we have... taken cases for a long time, and the way that it works better, the routine way, is for a case to be fully adjudicated in the courts below.

and then we review it on appeal to decide whether the judgment below should stand or not. The emergency docket has not run its course. These are cases that have not run their course in the lower courts. Lower courts have reached an early tentative decision, often a preliminary injunction. And when cases come to the emergency docket, it's essentially the litigant who comes seeking relief to us saying, look,

The lower court has done this, let's say, and joined the birthright citizenship policy. And we can't wait. We need relief now because if you wait to take this case until it runs its course in the lower courts... What happens in the interim, the suspension of whatever statute or executive order is in place, that causes me irreparable harm, and so you need to act right away. Now, in that case...

We did not have the birthright citizenship question before us. The only issue that the government sought emergency relief on was the question of whether district courts could enter these things that are called universal injunctions. Okay, and I want to talk to you about injunctions because this is something we've written a lot about and that all of us have sort of learned a lot about. It was not an issue.

several years ago in the way that it is now, and I want to characterize it and make sure I'm characterizing it correctly. Basically, in the early months of this administration, Every day we had a situation in which some judge in some state was blocking something that the Trump administration was trying to do. I'm exaggerating only slightly. In this case, as you mentioned, the Supreme Court didn't decide whether or not the birthright EO was unconstitutional.

I'm not a judge. I have no idea how that could not be unconstitutional, but whatever. But what the court did do is basically limit these nationwide injunctions. And so my question is really about the injunctions, because it seems to me that they're kind of a Rorschach test. People looked at what was happening in the first months of the Trump administration and either felt broadly one of two things.

We have a lawless president, and these judges are protecting us from his lawlessness. Or we have rogue activist judges trying to make an end run around a president that was democratically elected. No pressure, but, like, makes... Which is it? Like, make sense of it for us. Like, steel man each side and help us make sense of sort of what was going on there. Which is it?

Okay, our district judges work so hard to get it right, and they are facing the same emergency docket, you know, this fast and furious flow of these cases that are coming in to them, too. So I think... all federal judges are working hard here.

I think the thing with universal injunctions, it's not new to this administration. I mean, this has been something that has been escalating over time. There were universal injunctions entered during the Biden presidency as well against various of the... by the administration's executive orders.

And these universal injunctions shut down essentially the executive order, or it can happen with respect to a statute, as to everyone. Sometimes they're called nationwide injunctions because an easy way to think about it for a non-lawyer is just to say, You can't enforce this policy anywhere in the country. And normally the way litigation works is that I sue and I say, you can't apply this policy to me. But a universal injunction...

is efficient. I mean, that's one of the arguments for it. It's efficient because if the judge thinks it's unconstitutional, you can say, well, look, you can't enforce it against anyone else. The question is whether the judge has authority to do that or not, which was the CASA question. You once described yourself as a one jalapeno gal as opposed to the... judge you clerked for, Justice Scalia, who you described as a five jalapeno guy.

Judicial Restraint and Political Attacks

Not a reference, obviously, to how you take your Indian or Mexican food, but a reference to the way that he wrote and the spiciness of it. You might describe yourself that way, but here is what you wrote in Trump versus Casa in which you were taking on Justice Jackson's dissent head-on, writing this. Justice Jackson decries an imperial executive while embracing... an imperial judiciary.

You said that she was pushing a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. And I think given your general restraint and stoicism and sobriety on the page, people were like, thinking you were a little Scalia-esque in that. Do you regret the way that you phrased it? No. Should you have gone further?

It's true that my general posture is I'm not, you know, I personally just tend not to be spicy for the sake of being spicy, but I am from New Orleans and everyone likes a little Tabasco once in a while. No, I mean, I think that you calibrate an opinion. I mean, sometimes there's a time and place for everything. And I thought Justice Jackson. had made an argument in strong terms that I thought warranted a response, and I thought that I set the calibration right. But I hasten to add...

That's an argument about ideas. One thing Justice Scalia used to say that I love is, I attack ideas, I don't attack people. And if you can't keep the two separate, you don't belong on a multi-member court. So... I have the deepest respect for Justice Jackson, and that was not an attack on Justice Jackson. We just disagreed about the principle. We just disagreed about this question of the scope of judicial power.

Scalia once memorably described an legal argument embraced by the court as pure applesauce, which I just thought was so delightful. What's a legal argument that you would describe as pure applesauce today? You can choose more than one. Well, I guess maybe it would just be safest to stick to Casa since you just couldn't. No, something else, something else. Oh, pure applesauce. I don't know, Barry. I'm going to get into trouble because...

If I can't choose something I've already written, I can't venture out into other arguments I have not yet publicly criticized. So I'm going to take a hard pass. All right, let's talk about some of the ways that you've ruffled feathers or, you know, put another way, the way that you've surprised people in the way that you've sided. So you sided with the liberal justices recently in a number of cases.

the Texas razor wire dispute, the attempt to freeze foreign aid, the Alien Enemies Act, the deportation case, and there have been others. And this has, of course, made you a target of the MAGA right. They've called you an evil DEI hire. I'm not even going to name the person that described you that way. Mike Davis, this prominent Republican lawyer, said you were a, excuse me, a rattled law professor with your head up your ass.

And I wanted to just give you the opportunity to respond to that. This has been... Not the physical position. Are you asking me for like five jalapeno responses? Yes. Yes. Like, what do you, like, you know, let's see. People have called me things on either side, and when we started the conversation, And to be in this job, you have to not care. I mean, you have to do your very best not to care. And you have to have a thick skin. So I don't have social media. And I found out about those things.

pretty far after the fact because my husband and my assistants essentially screen things that come up and we have a need to know arrangement and they just tell me things when I need to know and he did not. deemed the DEI hire thing that I needed to know right when it came out. You write in the book about clerking for Scalia, and you say, Justice Scalia rightly observed that the judge who always likes the results he reaches is a bad judge. Why do you think that...

And I'm sure we could talk about, you know, if you were a judge from a different position, I could ask it this way. But why do you think that a lot of people or at least some people on the right seem to expect the court to just deliver the results that they want. Like, what has failed civically in our country where this is the reaction? to decisions they don't like. I think everybody expects the court to deliver results that it likes.

And I think it's just a disconnect. And I say this in the book. I think there's a disconnect between what people want in a moment. You know, people want results. But the court has to apply the law. And so people who are onlookers to the court are interested or have a stake in the outcome. of course want the court to deliver an outcome. And that's not new. That's not just of this moment. That's something that...

Critics of the court have said for a long time and in other eras. So and I think it's not just, you know, people on the right. I think it's Democrats. I think it's Republicans. I think it's everyone. Everyone wants what they want and, you know, thinks that. certain justices should deliver it and are disappointed in results. But again, the court can't respond to that. Given the fact that you are, let's just say, less...

Public Perception and Judicial Independence

I don't want to say unpredictable. I don't know. Would you describe yourself as unpredictable on the bench? I wouldn't want to, unpredictable makes it sound like you're a rattled law professor. With your head up your ass. Right. No, no, no, no. Not unpredictable. Just, no, I feel like I, independent thinker. Let's say that.

Independent. Given your independence on the bench, there have been a flurry of stories in recent months saying two things broadly. One, you're the most interesting justice on the bench. And two, that you are... Drifting left and there was recently this big piece in the times by Jody Cantor sort of showing this very scientific looking chart proving proving as much Are you the most interesting justice on the bench and if not who is?

And are you drifting left? All right, pass on the first question. On the second question, You're recusing yourself. I'm recusing myself from the first question. On the second question, I don't think in those categories. And I think it would be actually inconsistent with my job to think in those categories of left and right. I mean, I think that, you know, judges wear black robes because we are not partisan. We're not wearing red and blue robes. We don't sit.

on the bench on the left and on the right. You know, it's not like Congress where everybody's on one side or another. You're sitting in order of seniority. And I think thinking in those categories of left and right... It's just the wrong way to think about the law, so I don't think about the law that way. Scalia said... Scalia said that the press is never going to understand the law. You seem to understand the law pretty well. I mean, I studied hard for this. But why do you think he said that?

And do you agree with that, generally? That the press is never going to understand the law? Yeah, why do you think he said that? I think he said that because of what we were talking about a minute ago. Just the press... and this isn't a criticism of the press, because I think this is how Americans live, operates in the current moment, in the current news cycle, with a focus on what's happening now. But the court operates...

at a place that's rooted in history and has the longer view. And I'll give you an example of what I mean that kind of circles back to your questions about nationwide injunctions and what's happened with respect to. to President Trump's executive orders. The court has to take these cases and think about them in terms of the presidency, not President Trump. And I think...

The media, and I think all Americans watching it, watching these cases unfold, is thinking about it in the context of the current occupant of the office. But one thing that the court has to do for these cases and for all is imagine that it was President Biden, President Bush, you know, president yet to be 50 years from now.

Because the answer has to be the same. But I think when you are in a business that is operating within a news cycle and you're thinking about outcomes and you're thinking about the way that... Things work in other branches of government where it's all decided by politics. You assume that the court is operating... in that same time frame and with those same political considerations. So one reason that I wrote the book was to show how the court operates and that it is not that way.

Constitutional Crisis, Trust, and Civility

After Trump took office, there were a lot of scholars that said we were in a constitutional crisis. And they basically said that because he was issuing a series of executive orders that these scholars said were unconstitutional, the birthright citizenship EO being...

one of those things. I'm not going to ask you to weigh in on them, but the broad principle is that courts move slowly. That's one reason for these injunctions that we've been talking about. And these executive orders move extremely fast. And that creates a window, in theory at least, where a president can act unchecked before the courts respond, and then the damage may already be done. Does that worry you? Is that something you're thinking about?

So the dilemma of these cases, and Justice Kavanaugh has written about this in some of his separate opinions, the dilemma of these emergency docket cases is that it can cut two ways. One is the way that you say, if the order is... illegal in some way or unconstitutional and it is allowed to maintain and stay in effect, then it will cause damage in the interim.

If the order is lawful and the court allows an injunction to stay in place because the pace of litigation is slow, it could wind up that an administration's policy is stayed for the bulk of the president's term because litigation moves. So a president might actually be on his way out of office by the time the case was brought to the conclusion of litigation.

So I think it's hard, and I think your view is going to turn in these cases a lot on whether you think the executive order was legal or illegal. Before any stay is granted, one... One of the key questions that the court has to answer is whether, let's imagine that it's the government asking the court for relief, whether the government is likely to succeed on the merits of its argument. So the court never...

stays one of the injunctions without considering whether the government is more likely than not to win at the end of the day. And if the court thought that the government was more likely than not to lose at the end of the day, it would leave the injunction in place, which should be

which addresses some of the question of what happens if an illegal order is in place. Let me maybe ask it in a more simple way. How will we know if we're in a constitutional crisis as American citizens? Like, what would that look like? Because honestly, if you're just a busy person going about your day and you see a lot of headlines that we're in a constitutional crisis, it's like, okay, how will we know that? What would that look like? Well, look, I think the Constitution is alive and well.

And I think that I don't know what a constitutional crisis would look like. I don't think that we are currently in a constitutional crisis, however. I mean, I think that our country remains committed to the rule of law. I think we have... functioning courts.

I think a constitutional crisis, we would clearly be in one if the rule of law crumbled, but that is not the place where we are. And it is true that, I mean, it's plainly true, that right now we're in a time of passionate disagreement in America.

But we have been in times of passionate disagreement before. I mean, if you just look at the 20th century and you think about campus unrest during the Vietnam War and you think about the Great Depression, and then if you go back a little farther and you think about the Civil War. You think about the 50s and you think about the civil rights movement. I mean, we've had times in this country where we have been bitterly divided and we have come out stronger for it.

And I think that one of the themes that I try to hit in the book is that we need to learn to compromise and talk to one another. and move forward past our disagreement to see one another as people and as fellow Americans and citizens. And that is the way to avert a constitutional crisis. In March, Laura Ingraham asked the president if he would defy a court order going forward. And this is what he said. No, you can't do that. However, we have bad judges. We have very bad judges.

And these are judges that shouldn't be allowed. I think that's a tautology. I think at a certain point, you have to start looking at what do you do when you have a rogue judge? Has a president ever spoken like that about the judicial system in this country? Has... Has a president... Oh, a president. An American. An American president. Let's see. So conflicts between the president and the judiciary are not new.

They existed between Andrew Jackson and the Supreme Court. Even Abraham Lincoln, there was some conflict. There was conflict between FDR and the Supreme Court. So I think that, you know, when we talk about the separation of powers and the balance of power and there being a tug and a pull between the branches of government, this is, you know, a dance that we've seen before.

One of the great themes, I think, of the past decade, but maybe longer when historians look back on it, is the crisis of institutional trust and authority, whether it's public health. or our universities or our schools. This is one of the great themes, right? And how does the court stay above that?

Right. It sometimes feels and maybe people disagree about that. Some people feel the court's been lost, too. But from my perspective, the court feels like one of the last remaining places that feels somehow. not above the fray, but as above it as is possible right now. How do you think, A, it maintains that, and B, and I'm asking you this, and I know this is impossible, because...

You sit on the Supreme Court, but just as an American, how do you think about that crisis of institutional trust and authority and what institutions that have lost it or have... broken it in some way? What can they do to bring it back? And what lessons, I guess, can the court offer the other institutions? Yeah, I worry about the lack of institutional trust, too. And I hope...

One hope of mine from the book is that I would like Americans to trust the institution of the court because I do think it is a branch of government and a place and an institution that... does operate with integrity and does, you know, I'm not saying that the court always gets it right. Certainly I wouldn't say that. I wouldn't say that I always get it right. And I don't think that the court is above criticism or that I am above criticism.

Anything like that. But I do think Americans should trust that the court is trying to get it right. And I do think that Americans should trust that the court is doing its best to... Stay above the fray, as you put it, Barry. I don't have a recipe for how we restore institutional trust generally. And I know that some would say that they've lost trust in the court. I also think people lose trust in things they don't understand or that they don't know about.

which is why I wanted to describe how decisions are made, and I wanted to describe how the court works so that people could see that and understand it. But I guess I think institutional trust fundamentally begins with trusting the people in the institutions. And I think that institutional trust...

grows from the trust that members of institutions have in one another. And I think it's when those who are within institutions mistrust one another and tear one another down that the foundation starts to crack.

Truth Over Status, Faith, and Violence

One of the things that you write about in your book is choosing truth over status. Truth over status, you write that it requires strength of character and achieving it requires mastering the natural impulse to be a people pleaser. You talk about how your oath specifically demands a willingness to be unpopular. Does that resolve come from your Catholicism, your faith? What well do you draw from? Because being hated is not a natural thing.

No, people want to be liked. I think one of the great, I mean, it sounds so childish to say, but I think one thing that I feel has changed in my understanding of human nature, really, over the past... five or ten years is how powerful the siren song of sort of being invited to the right parties and being in that warm bath of

people that like you, how powerful that is and how that's almost one of the most natural things that we want as people. So how do you overcome that? I mean, for me personally, yeah, I do think that faith... is a big part of it because I think... Everyone does want to be liked, and you're right, like the warm bath of popularity and kind of being where the cool kids are like you were at the cafeteria table in middle school. It's something that stays with you even as an adult, right?

But I think if you fundamentally don't have your identity or consider your popularity or your status as the most important thing, if that's not where you locate your sense of self and you identify. My values lie in other things, right? If I had to walk away from the job. I would not feel like I had lost my sense of self or if everyone hated me. You know, I do feel like my Catholicism and my sense of faith would be what would enable me to take it.

And I'm very fortunate. I have a wonderful family. We have good friends. My husband's so supportive, you know, screening all of my need-to-know mail. So he's a buffer. But yeah, I mean, I do think, and I think in the last five to 10 years that you're talking about, you've gone through your own lessons in that regard. And I do think it's hard. I do think it's hard. One of the things I think that's also just changed so much since I was a kid is just the...

And we've lived through periods of intense political violence in American life. You read a book like Brian Burr's book, Days of Rage, about the 60s and 70s, and you're like, there's like a bomb every other day. It's crazy. Now, though, it feels like political violence is really heating up. And of course, people think about Luigi Mangione, but also, you know, an armed man showed up at Justice Kavanaugh's house with plans to assassinate him. You've spoken about your son.

at one point asking why you were wearing or had a bulletproof vest. Your family's been threatened. A January 6th rioter said he wanted someone to slit your throat from ear to ear. What can people... that love this country and are very concerned about the temperature being so hot. What can citizens do to try and bring it down, if anything? Let's see. I think modeling disagreement and seeking out friendships with people who disagree with you.

I mean, honestly, I think one of the, and I mean, I'm no sociologist, so I don't know all of the sources of this. I mean, I think social media plays a part, a big part. I think COVID, one of the consequences of COVID is that it helps people get even more siloed. And so it's more unusual. People think it's remarkable when you have friends who disagree with you politically or, you know,

even if they share your politics, have deep disagreements with you about other things, or people of faith and then people of no faith. And that's just not how... America has traditionally operated, I don't think. Disagreements have been present forever. But I just don't think that that kind of silo effect is healthy. And I think that...

in our current moment, and I'm not comparing it to what's happened in the past, but in our current moment, I don't know, change starts small, and you can't stop the way other people, all you can control is yourself, right? You can't stop. threats made by other people or the way that other people are acting, but you can model agreeing to disagree in your own relationships, and then I think that spreads.

Juggling Family Life and the Court

One thing we haven't really talked about tonight is we've talked about one group of nine. We haven't really talked about the other group of nine, which is your family. When I think about seven kids, seven kids, like I, you know, we have two and we have a startup. and it feels like it's impossible. And then I think about your life and you have seven. Make the rest of us feel better. What's the nanny situation like in your home? How are you balancing all of this?

Well, ours are older than yours, Barry. My oldest daughter is 24, and she's with us tonight. It's not like you have... We don't have seven three-year-olds. And that helps. But I feel like you could maybe do that too. I think my grandmother of the picture, maybe she could. I definitely can't. When the kids were littler, we had a fabulous childcare situation because my husband's aunt was our nanny, and she just loved the kids, and it was like having another grandmother in the house.

Now they're older and they're all in school. We have an after-school babysitter. And, you know, it's a team effort. And right now Jesse is doing more than his fair share of the teamwork. So, yeah, I mean, it is a lot of... balls to juggle, but I will say that I find that work always expands to the amount of time allotted for it. And so if you force yourself to work, I mean, I'm home for family dinner every night.

with some rare exception. And if you just tell yourself, I've got to walk out the door then, you manage to get everything else in in the time that you have. You go back to work after dinner. I do not go back to the court. Not physically. Not physically. Yeah, I will often do some more work at home, but I'm getting old, Barry. It's hard to stay up that late.

You mentioned your youngest son, Benjamin, has Downs. You learned about his diagnosis after you were born. And in an old interview, you tell a story where you're on the phone with your mom and you say, Our life is like a high-speed train, and I really needed a baby who could hop on board. Tell people what your mom said. She said, then I think the Lord's telling you to slow your train down.

Lightning Round and Scalia's Legacy

But that didn't really happen. Amy Cooney Barrett, this is a lightning round. Okay. And try not to recuse yourself. I know it's going to be tempting. Are you ready? I'm ready. One word for the following people. John Roberts. Chief Clarence Thomas. Laugh. Samuel Alito. Grandfather. Sonia Sotomayor. Lively. Elena Kagan. Analytical. Neil Gorsuch. Out West. Brett Kavanaugh. Sports. Katenji Brown Jackson. Actor. Broadway, Broadway. Yeah, that's what I meant. RBG just for fun. Collar. Nice.

Scalia. Opera. Favorite justice from history? American history, that is. Yeah, so this is the conventional answer, but I'm going to say it anyway. Chief Justice John Marshall. He was an institution builder. Favorite president in American history? Oh, why not be conventional twice? George Washington. Really? I thought you were going to go Lincoln. Yeah. Most important founder in your view? Oh.

Probably Madison. Who was the best pope, and you're not allowed to say John Paul II, because everyone does. Oh, but that's my answer. He was my formative... My formative years. Okay, you can go with him if you want. Yeah, I'm sorry, I'm a conventional girl here. Who was your confirmation saint? Saint Therese of Lisieux. Why? I just loved her. I love her story. She was a saint just in doing the little everyday things. We named one of our daughters after her. Have you seen The Handmaid's Tale? No.

And I've never purchased said costume, but I did have many Handmaid's Tale costumes sent to me after I was confirmed. Enough that your whole family could have a common Halloween costume. I did not keep them, Barry. We talked a lot about Scalia tonight. He called his clerks the clerk karate, which I think is so cute. What's the greatest lesson you ever learned from him? Oh, gosh.

So many, but I guess I will single out this one. He was very devoted to faith and family as well, you know, while accomplishing an incredible amount, you know, just being just in a... astoundingly good justice and astoundingly good writer. But he never lost sight of those values. And I'll end my...

tribute to Scalia with the story that I relate in the book, which someone wrote about after he died. He was in a church and no one else was around and he remained in the pew. And there was another person in the church. who looked, as this author described it, like the kind of a person you avoid in the street, sounded like a homeless and mentally ill person, and came up to Justice Scalia, and he sat there and he listened to the person.

Reached out to the person. Didn't turn away or avoid the person. Pressed money and hands. Gave a hug and left. Didn't know anybody that had seen him, but this person was in the church. And to do what Justice Celia did and accomplished in life, but still be able to have moments like that and to still see humanity, I think, is really special. That's the kind of person I want to be. I had other questions, but that's the perfect closer. Thank you. One second. I got to plug the book one more time.

Amy Coney Barrett is the author of this book. It's called Listening to the Law. And crucially, the bar in the lobby is going to be open for the next hour. So please go have a gin and tonic. Enjoy yourself. The best part of any free press event. is meeting other subscribers. Thank you all so much for coming. And thank you one more time. Thank you, Barry. Thank you a lot. Thank you, everybody. Thanks for listening. As you heard, this was a Free Press Live event.

Among the many things we do, live events are my favorite and we have so many in store for you in the coming weeks. We have Paul Kingsnorth in New York City on September 29th, Palmer Luckey in D.C. on October 8th, and Jonathan Haidt in New York City. on October 22nd, along with many to come. To learn more about all of the events we're doing, you just need to go to this address, thefp.pub slash events25. Last but not least, there was a lot.

that you may have liked or disliked in this conversation. Hopefully it provoked you. Most important is to use it to have an honest conversation of your own. So share it with your friends and family. And if you want to support the kind of conversations we do here on Honestly, there's only one way to do it. And that's by going to the Free Press's website. at thefp.com slash subscribe and becoming a subscriber today. I'll see you next time.

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