Legal Docket: Courageous and steadfast

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NICK EICHER, HOST: It’s Monday September, 15th. Glad to have you along for today’s edition of The World and Everything in It.

Good morning. I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket.

Threats against Supreme Court justices are not theoretical. In 2022, a man was arrested outside Justice Brett Kavanaugh’s home in an assassination plot.

EICHER: Back in 2020, in a rally on the steps of the Supreme Court, Senator Chuck Schumer had fiery words for Justices Kavanaugh and Neil Gorsuch.

SCHUMER: I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price.

Schumer had to walk back those words. Even President Trump has taken repeated swipes at federal judges, prompting Chief Justice John Roberts to publicly defend the independence of the courts.

ROUGH: And now, Justice Amy Coney Barrett is telling us what that climate looks like up close. This is from a recent interview with Norah O’Donnell of CBS:

BARRETT: When I became the, let’s say, not so proud owner of a bulletproof vest, one of my boys saw it and said, ‘Wow, is that what I think it is? That is so cool. Can I try it on?’ Thinking this is a parenting moment that I wasn’t quite prepared for. I said, ‘Sure, go ahead,’ and he puts it on. And then he looked up at me and he said, ‘Wait, why do you have a bulletproof vest?’

EICHER: That startling moment gives us the frame for today’s Legal Docket: the danger of our times, and the courage required to serve. From threats outside their homes to rising public rhetoric, the justices work in an environment more volatile than ever.

ROUGH: On Friday, Justice Barrett spoke at her alma mater, the University of Notre Dame just days after the assassination of Charlie Kirk. She stressed the importance of civil discussion. She said political violence is no way to run a society.

Justice Barrett is on a mission to help us listen to one another, even in spirited debates.

It’s one of the points she makes in her new book, Listening to the Law. At her book tour kickoff at the Lincoln Center in New York City about two weeks ago, journalist Bari Weiss asked Barrett whether she thought we were in a constitutional crisis.

BARRETT: On Friday, Justice Barrett spoke at her alma mater, the University of Notre Dame … just days after the assassination of Charlie Kirk. She stressed the importance of civil discussion. She said political violence is no way to run a society.
Justice Barrett is on a mission to help us listen to one another … even in spirited debates.
It’s one of the points she makes in her new book, Listening to the Law. At her book tour kickoff at the Lincoln Center in New York City about two weeks ago … journalist Bari Weiss asked Barrett whether she thought we were in a constitutional crisis.

Justice Barrett frequently quotes her mentor, the justice she clerked for, the late Antonin Scalia:

BARRETT: He used to say, ‘I attack ideas, I don’t attack people.’

Justice Barrett says she understands that to the public, the work of judging can seem mysterious, because so much of it happens outside the public eye.

This is from a conversation at the Ronald Reagan Presidential Library in California last week.

BARRETT: So I think when people find out about the court’s work, it’s usually at the end of the process, it’s usually when you see the headlines saying this is what the court decided. But really the case would have started at the Court anyway, months and months before that. We get about 4000 of what are called petitions for certiorari every year, and those are requests that the court take a case.

EICHER: Of the 4,000, the court takes only about 60 of them.

BARRETT: We don’t take cases just because lower courts, we think they might have gotten it wrong.

The 60 they take for full review end up on the merits docket.

Usually that’s because lower courts in different regions have come to conflicting conclusions on the same federal question, and the justices need to establish a uniform national rule.

Justice Barrett has also addressed the hot-button topic of the emergency docket:

BARRETT: These are cases that are still pending in the lower courts. … When we weigh in on that, we’re not definitely resolving the question.

ROUGH: So let’s hear more about the inside workings of the Supreme Court.

Once a case is accepted, the justices dig into the briefs, the relevant cases, and the statutes. Barrett says it’s still old school research inside the court—even though outside, lawyers are already using AI tools to prepare.

BARRETT:I have it on good authority that some lawyers who practice before us have prepared for oral argument by asking AI … Well, what questions might Justice Barrett ask in this case? … And scarily, apparently, sometimes the AI predictions pan out and those questions actually do get asked.

After arguments, the nine justices huddle and decide the case.

BARRETT: When we meet in the conference room, it’s only the nine of us. There are no assistants. There are no law clerks. … The door is shut.

The chief justice speaks first, the newest justice last. That order gives senior members more sway. But it also lets those at the end shape their comments to address points of disagreement.

When they disagree, and they do, they stay civil. No raised voices, no dividing the court into “left” and “right.

BARRETT: Judges wear black robes. … We’re not wearing red or blue robes. We don’t sit on the bench on the left and on the right. It’s not like Congress.

After the conference, the justices await the Chief Justice’s “assignment memo,” naming who will write which opinion.

EICHER: Justice Barrett’s book also talks about the endurance of the U.S. Constitution. The average constitution around the world is replaced every 20 years. So why has ours lasted?

BARRETT: One is its brevity. It’s pretty short.

Small enough to fit in a pocket, but written down so our rights are clear. At the same time, it’s also bare bones—leaving room for regulations and statutes easier to change.

BARRETT: So we really kind of keep it to the basics in our Constitution and then we put most things into the democratic process of contemporary process.

She does admit a constitutional flaw that preserved slavery, for example. But she says its built-in amendment process allows correction. Over the years thousands of such corrections have been proposed—roughly 12-thousand amendments. But just 27 have been ratified.

ROUGH: In the final section of her book, she addresses her own work, the role of judges.

BARRETT: We’re there to interpret the law, not decide cases with an eye toward political reaction, popular reaction. … And I think the way that the court can conduct itself is to try to assure the American people that what the court is really doing is law, not politics.

One of the stories Barrett tells is about the Boston Marathon bomber. Barrett personally doesn’t believe in the death penalty. But when the case came before the Court, she sided with the majority to uphold it, because the law compelled that result.

She says it can be easy for judges to slant the law toward their own preferences. To keep herself in check, here’s her approach:

BARRETT: What I try to do is, when I’m deciding a case, and let’s say it’s a question on Congress’ authority to do x. And I don’t really like x. To try to make sure that I’m not biased on the constitutional question because of the particulars of the policy. I will imagine Congress having done y, something I do like, and what do I think about the constitutional question then. It’s kind of a way to make sure I’m keeping myself honest.

Much of this comes down to judicial philosophy. Mariel Brookins, who clerked for Barrett when she was on a federal appeals court, explains her old boss’s approach. Barrett is an originalist.

BROOKINS: Originalism says the meaning of the constitution is knowable and fixed. The meaning is what a member of the public, at the time of ratification, would’ve thought that the constitution meant.

On the other end of the spectrum:

BROOKINS: You’ve got living constitutionalism. And that’s this idea that we don’t want to be ruled by a dead hand. What the founders thought shouldn’t be that heavy on us today. And the constitution is vague enough and adaptable enough that it can flex over time with the changing society.

But is there a moral or ethical reason for judges to adhere to originalism versus living constitutionalism? Or are they just different visions of how the law ought to work, no “right,” no “wrong?”

Here’s how Brookins begins to think about it.

BROOKINS: I would say that for many Christians, on many political topics, the Bible does not just hand us an answer and say you must go in this direction. And I think that is largely true for methods of constitutional interpretation.

And yet, she says it’s helpful to think about why a method makes sense—to work out the principles behind it.

BROOKINS: And so a lot of the way I read the Constitution aligns with the way that I read the Bible where it’s got a fixed meaning. We can’t do anything that we want to, to stretch the text. We should be looking for the truest version of it, and not to kind of be stretching and pulling it. And I think that makes a lot of sense in the constitutional interpretation space, especially, because we have a branch of government designed to change the text, and we have a method for changing that text. And so … the goal should be … what is the fixed, best meaning of the Constitution? … We shouldn’t be changing it at the whims of society because it’s intended to be a longstanding governing document.

For Brookins, Barrett’s commitment to originalism mirrors her approach to faith: both of them grounded in fixed meaning. Justice Barrett and her husband, Jesse, are raising seven kids, making Barrett the first sitting justice with school-age children. Her ability to lean fully into all her vocations is why Brookins wanted to work for Barrett.

BROOKINS: I wanted the opportunity to be a practicing lawyer and be a mom. … I was just looking for role models and people who had pulled it off. I watched how disciplined and how diligent she was with her time throughout that entire clerkship. And I realized she is so respected because … her attention to detail is incredible.

EICHER: That discipline, Brookins says, is courage lived out not just in big moments, but in daily faithfulness. And despite threats, and the bulletproof vest, Barrett has never considered walking away.

CBS: Has that ever caused you to think about leaving the court?

BARRETT: No, no.

ROUGH: Despite the danger, Justice Barrett remains as committed to public service as she is to her family.

And that’s this week’s Legal Docket.

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