It is not uncommon for Supreme Court justices to write books. The topic and style of the books typically reflect the dispositions of the justices themselves.
Chief Justice William Rehnquist had a historical bent, writing two works on long-neglected constitutional episodes—All The Laws But One on civil liberties in wartime and Grand Inquests on impeachment. Justice Antonin Scalia built out the theory and practice of textualism, first with A Matter of Interpretation (theory) and then Reading Law (practice). Justice Stephen Breyer’s output went from the theoretical (Active Liberty), to the topical (The Supreme Court and the World), to the inappropriate (Against the Death Penalty). Justices Sonia Sotomayor and Ketanji Brown Jackson wrote autobiographies. Who is the “Lovely One” in Jackson’s telling? Whose “Beloved World” does Sotomayor recount?
The new book by Justice Amy Coney Barrett, Listening to the Law, reflects her long career as a teacher. Written for a general audience, it provides an overview of our constitutional system and the Supreme Court’s place in it, all the while drawing on anecdotes both from Barrett’s life and constitutional history.
While it has plenty of stories about Barrett and her family, the book is not really an autobiography like those of some of her colleagues. These stories all serve pedagogical purposes. The same goes for the history Barrett recounts—from the compromises of the Constitutional Convention to exemplar Supreme Court decisions. It is not history for its own sake or constitutional story time. The examples help to teach.
It is a style that will ring familiar to anyone who was lucky enough to have had then-Professor Barrett as a teacher—as I was. Cases are deployed to reinforce doctrine, anecdotes to show why it matters, and explanations of how the judicial process works.
What Barrett is teaching here is our constitutional system. She provides a soup-to-nuts view of how our system of government works, how it came to be, and the limited but important role played in it by the Supreme Court.
Echoing her mentor, Justice Scalia in A Matter of Interpretation, Barrett places her discussion in the context of democratic legitimacy and the rule of written law. Scalia dealt with the tension between common-law judging and written law, resolving it in favor of the legislative authors because they represent the people. He therefore cabined the mandate of judges by insisting that they be faithful to the legislative text in what is known as textualism.
Barrett expands that analysis to the full spectrum of constitutional action, the result being a judiciary with significant but limited powers, and a constitutional structure designed to accommodate the pluralism of a large, dynamic country. While the political branches are energetic, the judiciary, she informs, has restricted itself to resolving “cases or controversies” since the Washington Administration. Those cases or controversies are in turn restricted by the “standing” doctrine, and with “good reason,” because “[e]ntertaining suits based solely on legal objections would permit the judiciary to exercise general oversight of Congress and the president.” In such a world “[j]udges could be a roving band of theorists and philosophers, dropping in with binding pronouncements on issues of the day when they—in their sole discretion deemed it wise.”
At the same time, the federal government is itself bound by the enumerated powers granted to it by the Constitution. Federalism features strongly in Barrett’s telling, and not just because that is what the Constitution requires but because, in a continental nation of 300 million souls, civic peace is likelier when the bulk of legislation and regulation is handled among fifty diverse States. After all, “[w]ithout some form of subnational government and the localization of some rules, many of the values and viewpoints shared by a discrete minority of the country would be stifled in favor of national rule.” Barrett does not offer her catalogue of which rules belong where, saving this for the political branches and the judiciary to hammer out, but this passage just emphasizes that the book is less a treatise explaining how our system should work than an invitation to the uninitiated to better understand why our system works the way it does.
Of course, these structures and institutions are established by our Constitution, on which Barrett appropriately dwells at some length, from its inception to its ratification to its amendment to its application over time. Adam White has aptly described Justice Sam Alito as the “Burkean” Justice. Barrett’s approach here to the Constitution more closely resembles the Spanish classical-liberal philosopher—and a favorite of George F. Will—José Ortega y Gassett. Ortega, in his Meditations on Quixote, famously concluded, “I am I and my circumstances” (Yo soy yo y mis circunstancias.). To Barrett, the Constitution—and much else—needs to be understood in its circumstances.
The fact is that “[e]very federal judge is unique, coming to the job with her own character, experiences, and beliefs,” even though the judicial oath and its attendant obligations involve putting most—if not all—of that aside. Barrett consistently weaves her circumstances into her book about approaching the law, from growing up in New Orleans, to the remarkable stories of her grandparents and great-grandparents, to her faith, to the importance of motherhood.
More concretely, Barrett relays a story of her grandparents’ letters during World War II. Her grandfather—stationed on a boat in the Pacific—and her grandmother were in regular correspondence during the war, and the letters survived. Barrett notes that the letters from her grandfather, in particular, can be difficult to decipher if simply read without context. In the Navy, of course, his correspondence was subject to wartime censorship. Thus, to understand even something so quotidian as love letters, you need to appreciate them in their time and place, or as Barrett puts it, the “circumstance under which my grandparents wrote them provides important background.”
So, too, the Constitution. The Constitution “like the letters, is rooted in a particular moment in time; it too is a historical text with an important backstory and unfamiliar words.” Again, this is Barrett as teacher. What young person today, systematically miseducated over the past twenty years, has not been told to write off the Constitution as a product of bigoted men from a benighted time? Barrett, as she did in class, meets these people where they are: yes, the Constitution is a product of its time. It does reflect the circumstances of the Founding generation. But, to Barrett, that does not mean we dismiss it—we cannot: it is, after all, the fundamental law of our republic—but rather it means we need to engage it appropriately, and the way to do that is known as originalism.
The Constitution, as a text created in discrete circumstances, must be understood like any other text in its circumstances. This means “you must determine what it communicates, and to determine what it communicates, you must understand what the words meant to those who used them.” This is itself a more arduous process “than consulting a dictionary,” because a dictionary may only give you a plausible meaning and not “the meaning [the text] was designed to express.” Here she agrees with Professor Steven Smith who said, “what counts as law—as valid, enforceable law—is what human beings enact, and that the meaning of that law is what those human beings understood it to be.” Thus, the meaning from circumstances and text are inextricably linked and, to Barrett, “departing from the original meaning differs in degree but not in kind from departing from the text outright.”
Of course, while constitutional meaning is contingent on constitutional circumstances, that does not change the fact that constitutional interpretation is a fundamentally legal enterprise. Barrett notes that “judges—including originalist judges—do not function as historians.” The historical texts used by judges in the originalist enterprise, she notes, are “almost exclusively legal, such as cases, legal treatise, statutes, state constitutions, and debates about how to draft and whether to ratify the Constitution” all undertaken “in the context of a practical enterprise (as all judging is).”
Again, as if responding implicitly to “dead white men” objections she surely heard many times from law students, Barrett notes that the Constitution, although being a product of an era, does not lock it into the effects from that time. After all, the document itself contemplated amendment and was essentially ratified on the understanding that it would be so amended to add the Bill of Rights. Barrett notes, matter-of-factly, that there is “no chance” she “could have served as a delegate to the Constitutional Convention.” Indeed, “every member of [her] family would have fared poorly in the Founding Era.” She and her daughters would have been disenfranchised; her adopted children from Haiti would “have had virtually no rights at all”; her husband, growing up, likely would have failed to meet the property requirements to vote; and, of course, “as Catholics, we all would have been disqualified from holding office in many states.” To Barrett, this is not an indictment of the Constitution at all. but a reflection of its genius, because the “elimination of these barriers illustrates the Constitution’s capacity for change—and the framers’ wisdom in leaving us free to make it.”
One of the most contentious ways in which change both has and has not happened under the Constitution is in the area of unenumerated rights, where—given the fallout from the Dobbs v. Jackson Women’s Health Organization decision—Barrett wisely spends a fair amount of time. She concedes that unenumerated rights exist. (How could she not? They are addressed in the Ninth Amendment and formed the basis of our Declaration of Independence.) Consistent with mainstream jurisprudence, though, she locates their execution in the Due Process Clause of the Fourteenth Amendment. But just because unenumerated rights exist and may be enforceable does little to resolve actual jurisprudential problems surrounding them.
In Barrett’s view, the Clause does not give judges a roving commission to identify new rights. “If the Due Process Clause,” she observes, “expressly assigned the Court the role of creating some as-yet unnamed rights that are important enough to be placed outside the power of ordinary governance, I would agree that the Court has not only the authority but also the responsibility to engage in that task.” Of course, she does not think that is the case, and “that task does not belong to the Court.” Instead “the Court’s role is to respect the choices that the people have agreed upon, not to tell them what they should agree to.” She follows the framework set up in the assisted suicide case, Washington v. Glucksberg, that the Court can only recognize those preexisting unenumerated rights, identified with precision and evaluated through “a backward-looking assessment of the long-standing history and tradition of this country.” Again, we see hints of philosopher Ortega: rights, too, if the Court is to enforce them, depend on circumstances.
Barrett alludes throughout at her well known (or at least widely rumored) frustration with the “emergency docket.” She notes, “Opinions are the Court’s most important work product.” (Perhaps to justices; litigants may disagree, as they seek or oppose emergency relief.) In keeping with this view, she emphasizes that, when petitioning the Court, the so-called “vehicle” matters because “the Court looks for the best case in which to resolve an issue”—that is, not just any case that presents a worthwhile question.
Nevertheless, Barrett understands that the emergency docket is not going to disappear “[a]s long as litigants continue filing emergency applications.” She still does not like it because “the judicial system functions better when litigants and lawyers have the opportunity to fully explain their positions in their briefs, provide the Court the benefit of oral argument, and offer the Court the opportunity to make a deliberative and well-reasoned decision in consultation with one another.” Fair enough. But perhaps Barrett would do well to consider Ortega and adapt these constitutional-process preferences to circumstances as they are, rather than as one might wish that they were.
This goes to Barrett’s general view on the limited judicial role. Again, like her mentors Scalia and late-Circuit Judge Larry Silberman, Barrett is clear throughout the book that the role of judges is limited both in constitutional theory and practice. She is right, of course, and just because she takes this view does not mean she eschews the appropriate role of judges in exercising judicial review— to the contrary: she explains at length how judicial review works and why it is a good idea. Constitutional judicial restraint is not the same thing as duty-shirking judicial minimalism.
But Barrett’s view of a fundamentally reactive judiciary (responding to cases or controversies) may undersell the role of the judiciary itself as it aids and abets legal activism. Barrett quotes Justice Sandra Day O’Connor, who observed, “Most of the Court’s agenda is dictated by external forces: the actions of other branches of government, the decisions of lower courts, and ultimately the concerns of the public.” Barrett goes on to explain how this has played out over time, with segregation cases flourishing after the Civil War, social legislation at the turn of the century, New Deal litigation under Franklin Roosevelt, and civil rights in the 1950s and 60s.
To borrow Homer Simpson’s distillation of Ronald Coase, “Marge, it takes two to lie: one to lie and one to listen.” Similarly, it takes two to proliferate “public cause” or legal activist litigation: litigants to bring the cases and judges to hear them. As the Texas civil-rights icon, Judge William Wayne Justice, observed of the many cause cases ending up in his small courthouse, “I think the word got out that there was a judge in Tyler who was willing to follow the law.” While Barrett, via O’Connor, accounts for this state of affairs with the observation that the Supreme Court is restricted by “the decisions of lower courts,” when it comes to the federal judiciary as a whole, judges are not really just reactive. The Northern District of California, in this the year of Our Lord 2025, is open for a certain kind of judicial business — enjoining President Trump on everything from deploying the National Guard, to reductions in force, to immigration policy — and business seems to be thriving. Perhaps for the Supreme Court to stay in the circumscribed lane Barrett correctly prefers, the justices should take a harder look at whether the lower courts are really just being reactive or whether they are signaling demand to generate cause-litigation supply, like Judge Justice decades ago.
For obvious reasons, the book, while mostly about the Supreme Court, does an excellent job of reiterating the constitutional obligations that exist government-wide. Barrett recounts, for example, the argument in the Washington Administration over the First Bank of the United States, which was a constitutional dispute between Alexander Hamilton and Thomas Jefferson—textual analysis and all—that was resolved entirely within the executive branch. Again channeling her mentor, Scalia, Barrett points out that everyone in government swears an oath to the Constitution and must therefore engage in the same process of constitutional reflection. Indeed, “the federal courts do not have a monopoly on constitutional interpretation. Every officer who serves in the executive and legislative branches takes an oath to support the Constitution.” And, “The maintenance of our constitutional culture therefore depends on the diligence of all government actors. Citizens should demand that diligence from elected officials, just as they should demand it from judges.”
With the advent of judicial supremacy in the wake of Cooper v. Aaron, it is depressingly common for elected officials to take a “let the courts sort it out” attitude to the constitutionality of their actions. It is not surprising that Barrett takes a contrary view, as one of the very few scholars to have studied constitutional interpretation within Congress.
While the book is clearly designed to educate a general audience, it will surely get its closest reading from lawyers and politicos. Lawyers will find value in Barrett’s explanation of her decisional process. Obviously, she does not provide cheat codes to getting her vote, but there are interesting tidbits for practitioners, nevertheless. For example, she seems to be generally ambivalent toward amicus briefs—to the likely consternation of the Junior Senator from Rhode Island, who is convinced that they are the vector by which the shadowy forces of industry enact their will upon the Court. Indeed. Barrett even notes this can be the case because it is not hard to identify and discount their apparent biases, pace Senator Whitehouse’s conspiracy theories to the contrary.
Lawyers—and others—who read Barrett’s masterful exchange with Justice Jackson in CASA v. Trump will perhaps recognize Barrett’s non-lawyer, liberal aunt who “expressed disappointment that opinions (including mine) were often driven by what she called, ‘legalities.’” “‘Amy,’” her aunt “laments,” “‘I thought the Court was supposed to be about doing justice.’” Indeed.
While Listening to the Law, like its author, is assiduously apolitical, hints do occasionally slip through. Lest any of Barrett’s newfound, hyperbolic critics on the right doubt it, she is definitely a conservative. King (Saint) Louis IX? was possessed of “divine inspiration.” Alger Hiss? “a Soviet spy.” Chuck Schumer’s infamous “you have released the whirlwind and you will pay the price” speech even makes an oblique appearance: “[P]oliticians proclaim their views everywhere from the floor of Congress to the steps of the Supreme Court.”
And there is a fundamentally political subtext to the book, although surely Barrett did not intend it. When I was working on her confirmation process in the fall of 2020, the line I frequently got from my wife, family friends, and even a number of judges was “we need Barrett on the Court.” Some of that was politics of representation, as expressed at the time by Chairman Lindsey Graham, but more of it was that they thought it would be good for the country to have a brilliant, but kind and thoughtful, conservative woman on the highest court. When I asked one (retired) judge to help out with the process, he responded to the effect, “my wife would kill me if I didn’t because she thinks we need Amy there more than ever.”
There is a largely forgotten vein of modern conservative politics that relied on the support of suburban women. Phyllis Schlafly gets most of the credit, but you see it elsewhere, too. The late, great Robert Novak recounts in his memoir, The Prince of Darkness, that one day he woke up noticed his largely apolitical but pro-life wife had become an active volunteer with the GOP. The judge whom Barrett replaced on the Seventh Circuit, Dan Manion, has a fascinating “oral history” where he recounts his path to the bench—largely through Indiana Republican politics. He recalls a political campaign in 1978, saying, “One thing I realized was that most of the people working on campaigns are women. They do the tedious and necessary work.” He went on, “eighty percent of the people working on my campaign were women.” It is a history that has echoes in Barrett’s retelling of the life of Abigail Adams—who did the tedious and necessary work of the Adams household to support her husband’s brilliant career as a statesman.
If history is a foreign country, this history is Timbuktu to someone who follows contemporary Republican politics. In the last decade of Donald Trump, Hillary Clinton, Dobbs, and the podcast “manosphere,” so-called “establishment” conservatives from Mitch McConnell to Bill Barr have fretted considerably over the steady erosion of the GOP’s formerly reliable base of suburban women. If the mainstream media’s 2024 post-mortems are to be believed, the 2024 Trump campaign decided that a “gender gap” with women was manageable as long as Trump generated his own sufficiently large gender gap with men. Luckily it worked, but the McConnells and Barrs would be right to worry about how these relative gender gaps play out in, say, a low-turnout midterm, or a future presidential ticket without Donald Trump. (Barrett is clear in her book that you only get two terms as president.)
Who knows if these political trends can be reversed—indeed it is up to the people whose job it is to actually win elections to decide whether they need to be. But if they are, it is going to be figures like Barrett who help do it. Her message of pluralistic constitutionalism, respectful disagreement, and love of the Constitution is what the fleeing suburban base should hear.
Which goes back again to Barrett as teacher. Her purpose here is clearly civic education, politics aside. She does so effectively, and Listening to the Law makes brisk and informative reading to anyone interested in learning more about our system of government. Of course, that means if you are looking for a comparative analysis of the different theories of originalism, or a detailed accounting of the relationship between positive law and natural justice, or the role of corpus linguistics in textual analysis, that is simply a different book, with a different purpose than this one.
Returning to context one last time, when Scalia published A Matter of Interpretation in 1997, he was in the jurisprudential minority of the Court. Today, as Barrett describes textualism and originalism, those approaches command majorities. Originalism has thus gone from a theory of dissent to a theory of governing. Barrett does not tell us in her book what that means for originalism, and perhaps appropriately so. Yes, she is a teacher, but her day job is the actual governing enterprise of deciding cases and controversies. If you want, then, to know what a governing originalism looks like, it is probably best to take a cue from Barrett’s brother-in-law: “You always say ‘read the opinion,’ so that’s what I’m doing.”
