Advisory Opinions - BONUS | Judge Patrick Bumatay Interviews Justice Amy Coney Barrett

Episode Date: October 4, 2025

Justice Amy Coney Barrett joined Judge Patrick Bumatay at SCOTUSblog's inaugural On the Merits summit at Johns Hopkins University's Bloomberg Center to discuss public scrutiny, swing votes, and recusals.This conversation was recorded on September 25, 2025. Show Notes:—Subscribe to SCOTUStoday Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

When you're with Amex Platinum, you get access to exclusive dining experiences and an annual travel credit. So the best tapas in town might be in a new town altogether. That's the powerful backing of Amex. Terms and conditions apply. Learn more at Amex.ca. This episode is brought to you by Peloton. A new era of fitness is here.

Introducing the new Peloton Cross Training Tread Plus, powered by Peloton IQ, built for breakthroughs with personalized workout plans, real-time insights, and endless ways to move. Lift with confidence, while Peloton IQ counts reps, corrects form, and tracks your progress. Let yourself run, lift, flow, and go. Explore the new Peloton cross-training tread plus at OnePeloton.ca. Welcome to a special bonus episode of advisory opinions. We are going to play for you the conversation between Judge Patrick Bumetay of the Ninth Circuit and Justice Amy Coney-Barritt at the 2025 Scotus Blog Summit on the Merits hosted at Johns Hopkins Bloomberg Center in downtown Washington, D.C. Now, there's a lot of fun stuff in here.

I would just say, like, come for the fun tailgating stories at Notre Dame football, but stay for one of the most expansive explanations of why justices don't explain their recusals on the court that I've ever heard. And if you'd like to hear more of the SCOTUS blog Summit 2025, you can sign up for our SCOTUS Today newsletters where they will be sending out all four panel videos from the SCOTUS blog Summit 2025, including the first panel with the law professor. moderated by Jody Cantor of the New York Times. Another panel with three of the chief legal officers in the country, Walmart, Meta, Citibank, moderated by David Latt. Really interesting panel about how the biggest companies in the world think about litigation at the Supreme Court in particular. And then finally, our judicial panel moderated by Steve Inskeep of NPR,

where you see, you know, how it actually works when you're the one trying to apply Supreme court precedent to so many of the other cases in the country. So sign up for the SCOTUS Today newsletter if you'd like to see more from the SCOTUS blog Summit 2025. But now for your special bonus episode of advisory opinions. Ready? I was born ready. So it's my honor to welcome Justice Barrett to the inaugural Scotis Blog Summit. Sarah mentioned you all get a copy of her new book, listening to The Law. In my view, the book is a great need for everyone, for lawyers and non-lawyers alike, for Scotis blog junkies like yourselves, I'm sure, and those that know nothing about the court at all.

So I really commend you to go read it. The way I'd like to start this interview is to go through Justice Barrett's early life and career, and then move on to more substantive topics about the law or the court. So, Justice Barrett, welcome. I'm delighted to be here. Well, thank you. Before we begin our interview,

I think I need to break some news. Uh-oh. It was announced earlier this week that your book will debut as number three on the New York Times bestseller. So congratulations. Thank you. That's great. It must be here.

Yeah. Well, what I think is actually even more impressive is that you beat Charlie Sheen. His book is only four on the best. the New York Times bestseller list. So how do you feel about beating? You're not the first person to observe that. Yes. Yeah. Those of us are our generation. That's a pretty big deal. So anyway, let's start. So from your book, it's clear that family is very important to you. Chapter one is all about your family's story. Can you tell us a little bit about your family's story?

Sure. So I grew up in New Orleans, the oldest of seven children, and we had a large extended family in New Orleans and my family on both sides and lived there for generations. So there was a real sense of rootedness, a real sense of closeness, both to my siblings who are now my closest friends, and then my aunts and uncles and larger extended family, which is why, you know, I say in the book, I don't think I've ever really shaken the desire to go back to New Orleans. We didn't. You know, I went to Notre Dame and became a law professor, and we moved here. We've never made it back, but we visit often. Yeah. I've always wondered, why don't you have a New Orleans accent? Well, you know, people think that New Orleans have southern, New Orleans have southern accents, but

we don't. It's actually a different, and I have lost it over time, but it sounds more like embarrassed instead of embarrassed water. It's almost like a little Boston-y. Oh, okay. That makes sense. So besides having your family there, why is New Orleans a special place to you? Is there anything about it that you really enjoy or miss? Oh, well, I mean, I love the sense of tradition and culture, the food, the music, Mardi Gras, you know, that, like that. What's your top food recommendation for New Orleans? I know many people know that Commander's Is there any other great wrecks? I love Commander's Palace.

I also really love Galozoz, which is an old French restaurant with traditionally French food that's on Bourbon Street. Great. So what was the first job you ever had? I was a lifeguard at the Jewish Community Center. Oh, very cool. I was a popcorn concessionist at a movie theater. So when you were a kid, what did you think you would be? I wasn't sure.

I really loved to read and I loved to teach. I did a lot of playing school in my very early childhood. So I thought I would teach. I didn't rule out law. My mother had been a teacher before she stayed home. She was a teacher in the days when you had to quit as soon as she became pregnant. So she taught in a public school and then stayed home to raise us after she started having children. My father was a lawyer.

So both of those were on my radar screen, but I was really interested more in teaching. Got it. So when did you actually transition to go? into the law or interested, being interested in the law? You know, like I said, it was always a possibility. I always thought about it as a possibility, but I really made the decision my senior year of college when I had to get down to it

and decide whether to go to grad school in English or go to law school. I did pro-conless, I took the GRE, I took the L-SAT. I can remember sitting in my dorm room, trying to make the call and chose law. So if you didn't choose law, do you think you'd end up as an English professor?

What do you think would have? I mean, I don't know, let's see, I think I would have gone to English grad school. I don't know whether I would have decided to be in the academy or, you know, whether I would have decided, hey, I want to go teach high school. Anyway, I'm not sure. Great. Then you went off to Rhodes College and then to Notre Dame Law School, and I'm assuming you did really well there. I confessed I didn't really love law school.

I thought, you know, I loved the intellectual exploration and the friendships you made, but I didn't enjoy the experience. What about you? I loved it. Oh, really? I did. I mean, I didn't like the stress, especially in the beginning and not getting grades and not knowing how you're doing. until the end of the first semester. But I did actually really love it.

Right. And where do you fall on the perennial question of whether students, young students today should go to law school? Well, I've had to give my own daughter this advice. My oldest daughter was thinking of law school. And she decided to take a job and work for two years and reevaluate.

And I thought that was a good idea because I don't think you should make the investment of opportunity cost, tuition cost, or time, unless you know that it's something that you want to do. So I'm not down on going to live. law school. I love law school. I think lawyers can have great careers and there are a lot of things you can do with the law degree. But I don't think you should just do it default. It's something to do. I don't know what else I want to do. Fair enough. You then clerked for the two of the most prominent

judges in the country, Justice Silverman on the D.C. Circuit, then Justice Scalia on the Supreme Court, sorry, Judge Silverman on the D.C. Circuit. You wrote about your relationship with them so tenderly in the book, which I really enjoyed, almost as if they were fatherly figures. Do you want to talk about that? And what's one thing you learn from each judge on how to be a good judge? So Judge Silberman was great at relationships, and it was very touching to me after he passed away, I think it's been two years now. After he passed away, Harry Edwards, with whom he served on the court in a number of different settings at various memorials gave Judge Silberman the tribute of having really brought the court together at a time that was contentious. They were having a lot of

Bonbons, and he kind of stepped back from that in the interest of collegiality. And I think that was a great gift of his. He was good at relationships with law clerks. He was good at relationships with his colleagues, also an excellent judge. So I don't mean to say I didn't turn anything about judging from him. But I really was impressed by watching the way in which, you know, he was friends with people who he disagreed with, or he might regularly be on the other side and opinions. Both Merrick Garland and Dick Cheney spoke at his funeral.

Oh, that's impressive. What about Justice Scalia? Justice Scalia was a huge personality. I learned a lot about analysis, a lot about writing, a lot about how to be quick-witted and articulate because you had to know everything about every case. And if he called on you, so to speak, you had to be able to make arguments about your co-clerks cases.

So you kind of always had to be on your toes. So I would say, and discipline, the discipline of following the law where it leads. What were your favorite D.C. Hans back when you were a clerk? working, like restaurants, bars. You're assuming I went out to restaurants. I would say I spent a lot of time at A.V. Restaurante because both Judge Silverman and Justice Clay really liked it.

Got it. Great. So after Clerky, you went on to a law firm, and I didn't know this, then you went on to work on the Bushby Gore litigation. You even ended up in Florida. How did that happen? And how was that experience? So I was an associate. I started out my career at Miller Cassidy, which then merged with Baker-Botz, which is a Texas-based firm, and James Baker is at that firm, and he was hired by the Bush campaign. So many of the associates in the D.C. office were dispatched down to Florida. So there were a lot of litigation going on at the time. I didn't work on, you know, I wasn't working in the Florida Supreme Court case. But yeah, it was very interesting for a young lawyer. I'm sure. And then obviously

the Supreme Court weighed in. How did you feel about how the Supreme Court handled that case? Oh, let's see. Judge Bumete pushing to... I'm wardrobin push a little. I'm sorry. No, that's okay. I mean, you know, I can't, as you'd say at a confirmation hearing, I can't. Okay, fair enough, fair enough. You then turned to academia. Why did you do that? Well, you know, I wanted to teach. I had always wanted to teach. And I did a fellowship at GW for a year to do some writing and research and think about whether it was what I wanted to pursue.

And before I went on the market, Notre Dame found out that I was doing this fellowship and reached out and asked me to do a job talk before I went on the market. And I did. And I just thought, I mean, I really had loved being at Notre Dame, wanted to teach. And it seemed like a dream job. It combined the two interests that I had, law and teaching and writing. I'm sure. So you wrote about Star Decisius as a professor.

In a 2005 article, you argued for a weaker form of Starved Decisius for Lower Court. that lower court should not adopt a strong presumption of stare decisis in statutory interpretation cases. That's music to my ears. But can you tell us briefly why? Sure. So the stare decisis as I used to tell my law clerks kind of comes in like tall grand divente. Yeah. And it's weakest in constitutional cases. It's medium strength in regular cases, so like common law cases or admiralty, things that the court doesn't decide very often. And then it's super strong in cases of statutory interpretation. And these different strengths of stare decisis developed at the Supreme Court level. And then courts of appeals have kind of followed suit.

And that is true with respect to statutory stare decisis too. But the rationale that the court is offered for statutory stare decisis is that Congress is on notice of the statutory interpretation and then it should be up to Congress to shift gears if Congress doesn't like the interpretation. I think that whatever one thinks of that presumption in the Supreme Court, I think the idea that Congress is tracking what happens all around the country in statutory interpretation cases, that it just is something that doesn't translate well to the courts of appeals. Right.

Now, jumping ahead, the article was written over a decade before you actually became a judge. Did your opinion change at all when you got on the court? You mean on the Seventh Circuit? Yeah, the Seventh Circuit, yes. Let's see. When you're a law professor, you get to write about the law as you think it should be. Right. But when you're a court of appeals judge or a Supreme Court.

court judge, then you have to take the law as it is. And so I didn't argue that the Seventh Circuit change its practices. The Seventh Circuit actually has a great process. I don't know if you have it on the ninth. We can do an internal circulation if a panel wants to overrule precedent or if it has been superseded by current events. And so there's not the pressure to have to go en banc every time. And I think that makes things work much more. Right. Yeah. If we want to do that, we have to go through the whole rigomerole and it's a lot of use of resources. So Has your view on any legal doctrine changed over time? Let's see.

So surely it would be true and one would hope that it would be the case that one changes one's ideas as one is exposed to other arguments. I don't think that fundamentally my approach to the law and to questions of interpretation has changed. Got it. So it's very clear we're a very happy as a professor in South Bend. Some of your former students report that you were a frequent tailgator. Is that true? That is true. Yeah, we had an antique green fire truck. It was a 1929 fire truck that we and some other families had. We had it painted green for the Irish. And yeah, we did a lot of tailgating. Great. And you mentioned your book that you had to burn the boats when you left South Bend. What are the smaller things that you had to leave behind that you miss? Like, is there a coffee shop or restaurant or bookshop? The thing that I miss most, honestly, is the gym that we went to. We went. We went.

I went to a CrossFit gym, and it was, you know, the trainer was great. It was the same people. I liked the competition of it, and now I just kind of have to work out at home. I miss the gym. Oh, yeah, that's probably tougher. How long have you been doing CrossFit? Well, I don't really do it anymore. I mean, I kind of do my own modified thing in my basement.

I did it. It is actually the thing I miss the most, and I'm in much worse shape now that I'm a justice than I was a lot of fuzzer. Okay, and in 2017, you were nominated to be a judge on the Seventh Circuit. it. Everyone knows that during confirmation hearing, Senator Feinstein said that the dogma lives loudly within you. I've always curious, what did you think about that statement? Did you take it as a badge of honor or as an insult? Let's see. As you know, having been through a confirmation hearing, you're kind of like a deer in the headlights the whole time and things are happening and you're just trying

to make sure you've thought through with the answer to the next question's going to be. So I was surprised by it. And I was surprised and I would say it was unexpected and a little uncomfortable to have my face be kind of in the spotlight after that hearing. But I mean, you know, it is what it is and it's a big part of my life. So, you know, I'm not ashamed of it. Fair enough. So it's almost exactly five years ago, I think tomorrow that President Trump announced your nomination to the Supreme Court. Can you tell us like what were the highlights and the low lights of that the Supreme Court confirmation? Well, I would say that it's pretty much all a low light. Fair. Fair enough. One of my daughters who was in college at the time made me a playlist

to listen to in the mornings as I was getting ready before I went to hearings. And one of the songs on it was this old Rodney Atkins song. If you're going through hell, keep on going. Nice. And that's kind of what the confirmation process is like. Right. Nice. You know, it's funny. I think in another interview you talked about the booting process for the Supreme Court and how you had to be prepared for protesters. Yeah. Do you want to tell? Oh, yeah, sure. So, you know, you have to be ready for anything.

So it was during COVID, so I didn't get to do a lot of big moots. But even in a smaller one, one of the things you had to practice is you're just sitting there and all of a sudden somebody would burst into the room and start yelling because you had to be prepared if that happened at a hearing to not lose your train of thought and to be able to continue to go. Yeah. So, Litterdone Fack, that was my role, protesting number one, for Justice Gorsuch during his mood. While he was mooting, I was sitting behind it and then I started screaming, GOR sucks, gore sucks. Did you come up with that?

Yeah, I thought it was. I didn't make signs, so anyway. So, okay, now let's turn to life on the bench. You write about the symbolism of a judge wearing a black robe. In your book, I didn't realize that the practice was actually started by John Marshall. Why is that important? That it was started by John Marshall? Well, no, that's the fact you're wearing a black rope. Okay, okay. So John Marshall started the practice as a sign of judicial humility

because he was establishing the Supreme Court as trying to gain respect as an independent and co-equal branch. And before the black robe, judges wore robes that were colored, often of the universities they had attended. And so he thought wearing a simple black robe showed that judges were not putting themselves above others or above the political branches or acting like aristocrats. And I think that it's true that the robe still today is a side of judicial humility.

But I also think that dressing in black, we all wear the identical color, shows that we are not, you know, we are all united in the business of the impartial interpretation of the law and application of the law. And so that sameness and that color, I think, is a symbol also of the judicial role. Great. Did you lock the front door? Check. Close the garage door? Yep. Installed window sensors, smoke sensors, and HD cameras with night vision?

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Absolutely incredible. Air Transat! Fly the seven-time world's best leisure airline champions, Air Transat. Now, how was it going from the ivory tower of academia to the court? Was it a big shift from going from an academic perspective to the judicial perspective? So I think one of the differences between academia and being a judge is getting used to being on a multi-member court. When you're an academic, you're writing for yourself.

You get to explore it, and in fact, you have to explore, you know, when you're presenting papers to colleagues, every weakness in the argument, you have to be heavily footnoted, but you really get to say whatever you want to say. On a multi-member court, I mean, on the Seventh Circuit, you're mostly sitting in panels of three, as in all courts of appeals. On the Supreme Court, you're writing for five, six, seven, eight, or nine, so you can't just say whatever you want to say. you have to find a path that you can have a majority for.

And ideally, I mean, I like to try to build consensus if, you know, you can find more. But you have to leave questions unanswered. And that can be frustrating. I'm sure. Now, was it a big shift from going from a circuit judge, seven circuit judge, to a justice, aside from being in the public life? Is there a difference in the role, do you think? So I think it feels very different to sit en banc in every case.

I think there's a, it feels very different. and I'm saying this a moment ago, sitting in a panel of three and always sitting in a panel of nine, that feels very different. The CERT process is obviously an entirely different process. But I think really the dynamics

of the multi-member court is the biggest difference in the job. Now, I understand you're still teaching at Notre Dame. So do you teach other places as well? I don't think I could fit a lot more teaching to the schedule that I do. And I've had daughters at Notre Dame the whole time that we've been here.

So it's also in addition to seeing my, yeah, in addition to seeing my friends on the faculty, it's also time with my kids. So is that why you teach to go back or does it also help with judging, do you think? In the summertime, I usually teach in August during the first week of school. And in the summertime, I try to catch up on larvae articles or scholarship that's been done in areas that are of importance to the court. And so there can be a synergy with my law students. I can assign and then we can discuss the articles

that I was wanting to read anyway. Fair enough. That's good. So it's a common criticism of the court that almost every justice on the court comes from the Ivy League. You're currently the only justice on the court, not from Harvard or Yale.

Does that make a difference? Is there some importance to having educational diversity on our courts? So I don't think that we need educational diversity just for its own safe. and I don't think that I decide cases differently from my colleagues because I went to a different law school, nor do I think it should be that way because, you know, I don't think that's, I guess I think the law is the law, as I'm sure you agree. I do think, however, that just for the sake of widening our lens, I mean, I've had law students, one of my, you know, very excellent law students, went to GW and part of

because her husband was in D.C. And he was working and she didn't have the geographic flexibility. I mean, I went to Notre Dame. I had a full scholarship. Many students choose schools for reasons other than just saying, I want to go to Harvard or Yale

because this is, you know, I want to be on the Supreme Court someday. I want to do X or Y. So I have found we, there's talent everywhere. And I think we, I think it's a little bit elitist

to think that it can only be found at Harvard and Yale. Good. And since you've been on the course, whether it a fair amount of criticism from both the left and the right. First off, are you on Twitter or any other social media where you see this criticism? No. No. Okay, good.

And how do you deal? But I take it. You've read some of the question. I'm on. So the criticism you do hear about, how do you deal with that? You know, I think, and this is a difference between the Seventh Circuit and the Supreme Court, and that goes hand in hand with being on a more visible court and being a public figure. I've had to just learn to tune it out, and when I do know about the criticism, and sometimes it takes the form, I mean, I know there are protests outside of my house or when we've had pizzas delivered, and that's sort of the thing. You just have to tune it out because it's the job of a judge not to. It's why we have life tenure, right? It's the job of a judge to ignore that and not be influenced by public opinion. John Marshall was burned an effigy for some of the rulings he made during the trial of Aaron Burr.

I mean, so criticizing the judiciary is as old as the institution itself. Fair enough. Now, you've been on the court for almost five years. Do you feel like you've come into your own as a justice? Come into my own, like, able to find my way around the building. Well, you get into your sea legs. You know, for me, it took about three to four years before I think I understood the job and how to do it well. Yeah, I'm sure judging is the kind of thing you're always learning, right?

I mean, we do have internal practices and procedures that, you know, it takes time. to become comfortable with or just to kind of know off the top of your head. But yeah, no, I feel very comfortable. Okay. Great. So now let's turn to some substantive questions. Since, you know, as you mentioned, both judges, and I know you can't say much beyond what you've written in your opinions, I'll try a little, but we'll see. So it's well known that you subscribe to the judicial philosophy known as originalism.

Would you describe the philosophy as you see it? And how did you arrive at that view? So originalism is the approach to the... the law, which says that the original public meaning of the text at the time of its ratification, as it would have been understood by an informed observer, is determinative when it's discernible. And I say in the book that I think one misconception of originalism is that it's like Google translate or chat GPT and you just put it in and then the history yields a clear result. And that that's why you should be an originalist because then you always get clear answers.

And I don't think that's true. You know, any kind of interpretation is complicated. Originalism is complicated. If you take a more pragmatic or progressive approach to constitutional interpretation, you know, that's hard. And the answers are not clear there either. But in my view, the ratified text is the law. People enact law as they understand that law to be and as it will govern the governed. So I am an originalist because I think it's the right way to think.

the law. Fair. Anyone growing up in the conservative legal movement would recognize that judicial restraint was often considered the highest value for judges, while today some see judicial restraint as contrary to what originalism dictates. First, did you consider yourself as part of the conservative legal movement before he became a judge? I'm sorry.

And then if not, and in second, what role should judicial restraint play in interpreting the Constitution? So I would say that judicial restraint in some In some respects, in the 1980s, when originalism was coming to prominence as a self-conscious theory of interpretation, judicial restraint was often identified as the raison d'etre because originalism in some respects was a reaction against some Warren Court opinions, which were perceived as being very activist. And so restraint was one of the values that early originalists prized.

I don't think that judicial restraint is the raison d'etra for originalism. I think the reason to be an originalist, and I think that as a matter of academics, I think academics would subscribe to this view more, is because it is the law. I mean, so my view of it would be kind of come from a place of popular sovereignty, where I would say this is the enacted law, and so where we can discern the meeting, we must follow it. Now, do I think that a side benefit can be restraint? Yes, because I do think that the extra.

and the discipline of trying to focus on what the text means is a metric by which, you know, I have to be restrained. So I think that judicial restraint is often a side benefit, but I don't think it's the reason for originalism, nor do I think, I mean, it depends on how you define restraint. I think that judicial activism is thrown around a lot and it's usually thrown around. It's never a good thing. It's usually thrown around as a criticism. of whatever decision is viewed as activist. I think if we just talk in terms of when the exercise of judicial review yields the conclusion that a particular statute or executive action is unconstitutional, I mean, I think originalism, and I think this should be true of any

theory of constitutional interpretation, would say, well, the Constitution is the supermajority law. It trumps. And so if that's what the Constitution requires, that's what the Constitution requires. and it's not activist to say, as Marbury v. Madison does, and following the Constitution, not the unconstitutional act. Well, in the Second Amendment context, the Court has described the text, history, and tradition approach. How do you see that in respect to originalism? Is it a different iteration of originalism,

the latest innovation of originalism, or is it something different completely? So I think people talk about history and tradition for a lot of different reasons, and I think it can have a role in originals, And then I think there's an aspect of it, which is not originalist. And I tried to say this a little bit in my rechemy concurrence. I think in the Bruin context, it is originalist insofar as what Heller said is that the

right to bear arms was a pre-existing right that the Second Amendment essentially codified. And so I think when the court is looking at history and tradition in that context, like what was the understanding of the right in 1791 when the Second Amendment was ratified? that is an originalist endeavor. It's trying to figure out, well, what was the original understanding of this right? What did this right entail? Now, I think there's another use of history and tradition, and I think this is what I was getting at in Vidal v. Elster, and I wrote separately in that case, which is not looking at tradition or history for purposes of discerning the original meaning of the text, but for something different because tradition and history

is considered long after the time of the text stratification. So that's not originalism that would justify consulting history or tradition to that end. It's something else. And so that something else must have a rationale. And I mean, it could be James Madison talked about the process of liquidation, you know, which is pretty specific for him. That was the constitutionality of the Bank of the United States where there's been an open constitutional debate engaged in by political branches, you know, and, you know, the judiciary

you can participate in it too over time and then something becomes settled. Or it can be persuasive. I mean, I think that in CFPB, I think a long pattern and continuous pattern of the political branches acting in a certain way can be persuasive. But I think to treat history and tradition that extends beyond the ratification period as determinative requires some kind of rationale. Fair enough. And then you talk about history and tradition. I think some people have questions. And is there a difference we do to you, or do they mean something different to you, or are they talking about the same thing? I'm not actually clear what the, I didn't come up with the history and tradition of things.

I don't know who you did, I don't, I mean, look, there are some areas in which it's act trinally required. That's true of substantive due process, right? So substantive due process, it probably comes from that line of jurisprudence because substantive due process talks about the history and traditions of the American people. Right, right. Yeah, I always think of it as, it's text and historical understanding, you know, whatever that is. So, and you mentioned Rahimi, I really enjoyed that concurrency, and you said that courts should

not at too high a level of generality in seeking for historical analogs. Do you have any tips on how to determine when you're looking at too high level of generality? You know, I think that is one of the difficult questions, not just in the Second Amendment context. I mean, I think that's true throughout the Constitution, right? That's true when you're looking at the Equal Protection Clause. And I think, you know, that is why Jack Balkan's form of originalism is quite different than Antonin Scalia's level of

originalism because Jack Balkin, the Yale law professor, would interpret it skyscraper originalism at a very high level of generality and a lower level of generality. So I don't think there's an easy answer because I think it's kind of a clause by clause scenario by scenario, but I think there's also a real danger. I said this in the Rahimi context of interpreting it to low a level of generality. I don't know. And do you think legal education these to change at all, to adopt to the prominence of originalism, you know, for students to better understand originalism, originalism to be better advocates for originalism before originalist judges, or how to conduct originalist research? Let's see. So I can't, my experience of an academic

is being at Notre Dame, and so I don't know, I wouldn't feel like I'm in a position to opine broadly on whether the legal academy should change its approach. But I will say that it always benefits. I taught statutory interpretation and constitutional law for many years. And I always, my goal was never to tell my students what to think, but always to equip them with the best answers on both sides. And when I taught statutory interpretation, for example, I did it in a seminar. And some students would become convinced very early on that they were textless, that they hated legislative history. They needed to know the best arguments on the other side and be challenged the whole time. And then at the end of the semester, I would always say, and whatever you think

about legislative history, you're going to be a lawyer. And if it favors your client, you better know how to cite it. Like, you're not going into advocacy with your set of principles. You need to know how to make the best legal arguments that are accepted. And so I would say the same would be true, I think, of all areas of law. I mean, the point of legal education is to teach students how to argue both sides of an issue. Right. I loved your concurrence in Biden versus Nebraska, where you laid out the case that the major questions doctrine is a linguistic canon rather than a substantive constitutional canon. Can you briefly describe what the doctrine is for the audience?

And you can explain why the difference between a linguistic canon and a substantive canon is an important issue. So a substantive canon is one that does not aim necessarily to interpret the law in its most ordinary and natural sense, which would be the central principle of textualism, would be to say we interpret these, language as an ordinary, you know, my colleague, Judge Frank Easterbrook in the 7th Circuit would say the ring the language would have had to a skilled user of language at the time.

A substantive canon is a interpretive principle that is willing to adopt a less natural but still plausible interpretation of the language to the service of some substantive end. So the avoidance canon, which interprets a statute if at all possible to avoid a constitutional problem is an example of that. That might not be the best interpretation of the language, just taking it straight up, but the court adopts a less plausible but still possible interpretation to serve that policy end, grounded in the Constitution, of avoiding a constitutional decision if one doesn't absolutely have to be made. So for the major questions, doctrine, that's the principle that a statute will not be, I'll simplify this, construed to

confer a major power upon the executive branch or upon the president unless it clearly says so. And there's a divide among people who think that that's a substantive canon that enforces the non-delegation doctrine, which is the principle that Congress cannot delegate away. It's lawmaking authority that Congress can give the executive branch discretion, but must always legislate for itself. I argued in Biden v. Nebraska, and I wrote it because Justice Kagan and her in that case made what I thought was a point that, you know, was one that needed to be answered, which was that the major questions doctrine can focus as a, can function as a get out of text-free card. And I don't think that's the case. I think the court has to be very

careful about adopting substantive canons. I wrote about this in my prior law professor life. You know, we've had substantive canons since the courts have been in business, lenity, avoidance, et cetera. So it's not that I think substantive canons are illegitimate, but, you know, they have a policymaking element. And so I think the court ought to be very careful about doing something that justifies a departure from the best meaning of the text. So in Biden v. Nebraska, I said that I thought the major questions doctrine, to me, actually facilitated identifying the ordinary meaning of the text because it's a backdrop principle. So I use the example of because I am a parent. When you're trying to think of examples and hypotheticals, the things in my day of life or what occurred to me, I use the

example of a babysitter staying with kids for the weekend and the parent gives a credit card and says, you know, make sure the kids have fun. We would think that that would apply to the movies or pizza, not to some big expensive amusement park trip or an out-of-town trip or that sort of a thing, because we understand in context that there are kind of rails or barriers just because we understand how we use language. Absolutely. So in your book, you talk about that you're sparing and your writing of separate opinions. So I was somewhat surprised to see your concurrence in Scermetti.

In that case, the majority, which you joined, said that the state law addressing transgender youth didn't violate the Equal Protection Clause because it didn't classify on the basis of transgender status. But you wrote a separate concurrence to say that even if it did, you didn't think that transgender class is a suspect classification. What was the thought process in writing that concurrence? Yeah, so I don't write a lot of concurrences because generally I think it's best to let the court's opinion speak for itself. And Scrimetti, you know, that question about suspect class was briefed in the case, and it's one that is percolating a lot in the lower courts.

There have been a lot of decisions about it, and I thought that it should be addressed. and I also, you know, I had a theory of how to think about suspect classes and the court's jurisprudence about that. And I thought it was worthwhile to put out there so that that we didn't have a lot of briefing. I mean, I thought the, my approach to suspect classes, we didn't have a lot of briefing on the question of whether there had been laws that, you know, functioned over time in ways that were discriminatory against transgender individuals in the same way that we did

for race or for gender. So anyway, I thought it was helpful to have that out there so that that issue could be briefed. I always said this, I always love concurrences from the justices showing us, you know, those lower court judges,

how to think about these issues that come up to us, even though the Supreme Court hasn't decided it. So that I thought was very helpful. So you wrote Casa v. Trump this past term, while the merits were about birthright citizenship,

the opinion dealt only with the question of universal injunctions. It was arguably the biggest case of the term, I think. And I have to say, it was beautifully written. I was a little depressed when I read it because I just don't think I could ever write an opinion so well. Wow. Yeah, it's true. It was succinct, clear, and I thought it really marched to...

Judge Boomerate. I know, I'm letting it on now. You're flattery. The next time I review an opinion by Judge Boometeis. I'll have to recuse. Anyway, so I have three questions for you. One, you're still relatively junior justice. Why do you think you were given this important writing assignment?

Two, does it frustrate you that the opinion is often mischaracterized as weighing in on the merits or supporting the Trump administration's view? And three, what tips would you give on how to be a better writer? One, I don't know. You'd have to ask the chief. Two, yes, it's very frustrating that people think it's about birthright citizenship. rather than the universal injunction. And three, you know, when I write, maybe this is just my professor streak,

I wanted to be understandable. It's not always possible to make it understandable to a non-lawyer, but I try to make the argument as streamlined as possible, because I think the more, you know, kind of cul-de-sacs that you go down, the harder it is to follow the straight line of an argument. Yeah, that was perfect. So if you listen to advisory opinion,

Sarah Isker often talks about how There are two accesses for characterizing judges. First is the well-known left-right access, conservative liberal access. The other access, which might be more important, is the institutionalist, non-institutionalist access. As I see, it's about how willing a judge is to rock the boat or shake up existing court institutions. First of all, do you think that's a good way to characterize judges?

And where do you place yourself on that access? Hmm. So I don't think I can completely understand why excellent commentators like Sarah Isker come up with these axes and different labels. But judges, I don't think of myself that way. And I think it's not a great idea for judges to think of themselves as falling in a particular camp or label. I mean, unlike politicians which self-identify and, you know, identify themselves and then caucus with one another. I mean, I don't caucus, I don't say, I am an institutionalist, and I would now like to caucus with the institutionalists. I will say that my general approach, as reflected by what I just said about when I write concurrences and generally letting the court speak for itself, I think the institution matters.

And I think that's the entire enterprise of having to write from multi-member court. You're not writing just for yourself, like when you're a district judge or a law professor. You are writing for a multi-member court. And so I do have in mind, and I do value the court as an institution and think we have to speak in an institutional voice and be protective of the institution. But I think my other eight colleagues would agree. So since you said you hated labels, you're going to hate this next question. But for a long time, Justice Kennedy was considered the most powerful justice because he was the swing justice. Some people say that you have become the swing justice.

Do you agree with that? So again, like I'll stand on what I said before. about labels. I also think a swing justice that makes it sound like you sort of are swinging back and forth and you can't make up your mind. And that is not how my approach to judging. I mean, my approach to judging is to not focus on it. It's not like I'm thinking about an outcome and then trying to figure out a way to get there. I'm just kind of playing it straight and I, you know, have have a philosophy and people might agree or disagree with either the philosophy or the result that I reach implying that philosophy in an individual case. But I don't think of

myself as a swing justice. Right. According to the SCOTS-Blog stat pack from the last term, it says that you agree with Justice Kavanaugh the most, 91% of the time, and agreed with Justice Jackson at 68% of the time. Do you have any thoughts on what you attribute that to? Well, I think 68% of the time is still more frequently than infrequently, and I think it's important not to lose sight of that. So it's almost 70% of the time I'm agreeing with Justice Jackson. And I think that Justice Jackson and I, I mean, my, I haven't studied, you know, the cases in which we disagreed or what, so I, but just kind of thinking about it. I mean, Justice Jackson and I come from different jurisprudential starting points. You know, she is not an originalist, for an example.

And so I think when you start in different places as an initial matter, then you naturally will arrive at different results. Whereas Justice Kavanaugh and I do both identify as originalist and textualists, so our starting place will be similar. Going online without ExpressVPN is like walking your dog in public without a leash. Most of the time you'll probably be fine, but what if one day your dog wanders a bit too far and gets dognapped by someone? Whenever you connect to an unencrypted network, like in cafes, hotels, or airports, your online activity isn't protected. ExpressVPN protects you by creating a secure, encrypted tunnel between your device and the internet, keeping hackers and snoops out. So why is ExpressVPN the best VPN? First, it's incredibly secure.

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What's the one misunderstanding about the Supreme Court you'd like to clear up? I think that the Supreme Court functions like the political branches, that were like Congress or the president. I want people to understand, agree or disagree. with the decisions that the court reaches, that we are engaged in a legal enterprise. And on the one hand, we're the most transparent branch because when we issue decisions, you know, we do our own work.

When we go into a conference room, it's only the nine of us discussing the cases, and we issue decisions that make plain our reasons. But on the other hand, because there's no C-SPAN in my chambers, you know, we don't have the same transparency of decision-making, process that the other branches do. And so I wanted people to see, you know, I devote a chapter

to describing how I go about making decisions, because I want people to appreciate in ways that you can't appreciate just from a hit in a news article that this is the result of legal analysis and not just kind of knee-jerk policy preferences, as you see in our friends across the street. In your book, you talk about how the Supreme Court only likes to take cases after they percolated in lower courts or in, and the court is looking for perfect vehicles to take the case. I always wonder, why does the court need to take a perfect vehicle? After all, aren't you deciding legal questions, not necessarily the case? Nothing's perfect. So a perfect vehicle, perfect vehicle would be unattainable. But you want to make sure, occasionally, so last time

we had a couple cases that were digged, that were dismissed as impotently granted. You don't want a grant to grant a case to decide a question on which the lower courts are divided only to have the case come up and then be derailed because there was a jurisdictional problem or because the facts were very unique. And so in fact, deciding that case wasn't going to settle the issue for all of the courts around the country. So you want to try to get a representative case that doesn't have facts that are going to distort the analysis of the legal issue. And you want to make sure that there's nothing that's going to prevent you from actually reaching the legal issue. Got it. So you recently recused in a case from Oklahoma, St. Isidore v. Drummond.

Some judges, justices give reasons for recusal. Some don't. I'm curious what goes into the decision to recuse and whether or not to explain it publicly? So recently some justices have started to identify bases for recusal, although that's new. I mean, the court has not, in history and tradition. The court has not, justices have not offered reasons, and we didn't in the Seventh Circuit either. I don't know of D.U. in the Ninth? We don't. Yeah. So it's an unusual, it's a veering from practice to do that. Judges will recuse their two basic categories. One is actual bias and the other is the appearance of bias. And actual bias is a very definitive list. I mean, if my husband were arguing the case, if I had a financial,

interest, no matter how small, those are just automatic triggers. You don't even think about it. I mean, if you had one dollar of stock, you would have to recuse even though you might say, well, obviously, this isn't going to affect my decision of the case. Appearance of biases would a reasonable observer who is apprised of all of the facts consider that you couldn't fairly dissolve the case? That is, that's a tricky standard. And, you know, that's, that's you know, that's a hard, hard standard to apply. I would say that in thinking about whether to do, and I'm speaking only for myself here,

but in thinking about whether to identify reasons for recusal, if you do, if you identify reasons, you have to do it across the board, right? The biggest source of corruption when we look at courts in other countries is financial. Our finances, as you have to too, file these financial disclosure reports, these FDRs. So my finances are out in the public and people can and do look at cases on the docket and compare them against our FDRs to see. So that's not

a secret. If there are cases that have come up from the Seventh Circuit and I've recused, it's very easily to check public dockets. I mean, you would assume that that's probably because of prior involvement in the case. You know, then there are a series of other reasons, including everything from, say, like personal relationships to, you know, deeply held convictions that one can't put aside. And if you think about those cases, you know, what if you had, and you have to think about, because if you start doing it, you will have to do it, like I said, across the board. What if you had some personal experience that led to great animosity and you felt like you just truly could not be unbiased because there was some extreme thing? Let's imagine I felt

that way about you, Judge Moumette. To name that. No, no, no, no. I mean, to name, you wouldn't want to do that. Or even on the other way, I mean, you may have heard that there are costs. My family members, it was publicly reported. We're getting pizzas delivered to them, et cetera. You know, and people can be mad at me for decisions or lash out at me for the way I decide a case, whether it's by recusing the case or casting a vote that they think is wrong.

But I have to think, too, about, like, well, is it really something I want to do to identify, if that's the reason, to identify that person and then put that person in that position. So I just sort of feel like when you think about the full range of reasons across the board, I don't know what might arise in the future. So I think it's just better not to say. There's a debate going on among circuit judges about the practice of writing dissentals. As you know, dissentals are dissents from the denial of rehearing on. bunk. Some judges hate the practice. They call them turbo charge cert petitions. Other judges use them prolifically. They think that their job is absolutely part of the job to flag when a circuit court has gone in a case egregiously wrong. I'll confess, I've written probably over 20

dissentals in my five years in the court. So you know where I stand. Where do you stand? Let's see. I think dissentals can be helpful in the cert pool. The law clerks review the petitions for certiorari. So I think having dissentals helps the law clerks, especially if the dissental flags that there's a circuit split here, et cetera. I think they can be helpful. I think it's a different question, what they do to collegiality on the Court of Appeals. So I would say from the Supreme Court's point of view, more information is always helpful. From the Court of Appeals point of view, I don't know how to weigh in on that. I would think that would be the other factor in deciding whether to write. That makes sense. Now, many people say

AI is going to disrupt the legal and profession. First off, do you use AI at all in your work? And do you let your clerks use AI? You know what? It's so interesting. I've been doing a lot of events for this book rollout. And that question has come up a lot and it has literally never occurred to me or come up in chambers for us to use AI and respect. Yeah. And nor could we just because of security protocols at the court. I mean, all the large language models upload and then and then it's not secure. I mean, do my clerks, I feel like my clerks, I feel like my who are here today, you know, last year, I had one clerk in particular, nobody Googles anything. It's always, you know, where do we want to go for lunch?

You know, some question, it's always asking chat GPT, how do you pronounce this? Right. But we don't use it substantively, and the confidentiality concerns would make it enough. The one feature that I like is I think it's called Google Notebook. It turns law review articles into podcasts. So you can listen to them at the gym or something like that. That actually intrigues me. I didn't know about that.

Yeah, I didn't know about that. I've tried Speechify, but then you have to listen. Speechify is a big pain for briefs because then you have to listen to all the citations. No, this is a great, because it actually sounds like two people talking about the case, like including with the ums and, you know, it's fascinating. Okay, well, you know what I'll be trying.

Yeah, there we go. So if we can, can we turn to the lightning round section of this? Sure. Okay. So can you give one word answers to the following questions? Okay. Describe the following circuit courts, the Ninth Circuit.

Judge Boometay. I like that. The Fifth Circuit. New Orleans Home. Wow. D.C. Circuit. Administrative law. And your home circuit, seventh circuit.

Favorite. Ah. Good answer. Your favorite amendment. Oh, gosh. Justice probably shouldn't isolate a favorite one. I love them all. Of course, the 19th is particularly meaningful to me,

but I love the whole constitution. Favorite all-time Supreme Court opinion? Oh, gosh. That is difficult to answer on the fly. I feel like Marbury is a safe one. Yeah, okay. That's it. What about dissent?

Are you favored all-time Supreme Court dissent? I guess I'd probably say, and I mean, I hate to say all-time because then that's a lot of pressure to say it wasn't anything else. but one of my favorite dissents would have to be Justice Scalia and Morrison versus Olson

because of this wolf comes at a wolf I mean, what a great line. Beautiful, yeah, I would have chose that too. What's their favorite opinion, concurrence, or dissent you've written? Hmm. I don't know, maybe Biden versus Nebraska. It was Finder, right?

Okay, so we have three minutes, I think? So in your book, you describe walking the halls of screen court with the music of your young, your son in your head. Specifically, the soundtrack to Encanto and the cha-cha slide. Those are solid choices, I think. As a parent of twin six-year-old girls, I have the same affliction. So what's the latest song stuck in your head?

For me, it's the music from K-pop Demon Hunters. Okay, since you said that, I guess I can trust you to have a no-judgment fool in this. Oh, yeah. Okay, so my husband has taken to waking up one of our teenage sons, by blaring Ozzy Osbourne's Crazy Train. Nice. Over-Hourg. Nice.

So what, aside from what other, you know, your kids make you listen to, what's on, what type of music do you like to listen to? What's on your Spotify wrapped, as the kids say? Oh gosh, my Spotify wrapped is hilarious because it has, it has music that all of my children play, because if we're making dinner or something, they all pick up my phone and then attach it.

So it's got everything from Enkanto to Crazy Train, to choral music. that I listen to when I'm writing, you know, and then probably like all people of my age, I'm stuck in the 90s in the early 2000s. I'm with you. Do you listen to any podcast? No comment.

Oh, wow, interesting, okay. Any good book recommendations? So I am currently listening to the Lincoln Highway Bay Amortals, and I really like that. I just finished the woman who smashed codes about the first cryptographer, and that was really interesting. Interesting. So I have to say you lead an extraordinary life, one of the most important jobs in the country and the parent of seven children. What's your secret guilty pleasure when you have time away from all of that?

How do you unwind? For me, my secret pleasure is horror movies. What's yours? Oh, I guess Jesse and I, my husband's name is Jesse. We will do watching Netflix at night. At this point, we don't have a ton of time for guilty pleasures. Yeah, fair enough.

So last question, as you know, food is constant theme for my questions. What's your favorite restaurant in DC now? I am not gonna say because I want the ability, yes, I want the ability to be anonymous. Fair enough, I think we are out of time. Okay, well, thank you, Judge Pumet. Yes, thank you very much.

All right. That was super fun. I thought Judge Bumete did an incredible job moderating that he was so prepared to talk to, you know, kind of his boss. And again, if you would like to watch the video from this or any of the other panels from the SCOTUSBlog 2025 summit, sign up for the SCOTUS Today newsletter at SCOTUSBlog. Oh! Oh! Oh! Thank you. I don't know.