The Dispatch Podcast - Judicial Philosophy | Interview: Sarah Isgur, Justice Amy Coney Barrett

Episode Date: September 9, 2025

In a battle of flagship podcasts, Steve Hayes invites Sarah Isgur to share her biggest takeaways from her interview with Supreme Court Justice Amy Coney Barrett. Then, listen in as the Advisory Opinions crew speaks with ACB about the strengths and limitations of originalism, insights from her new book, and her writing style. The Agenda:—Sarah’s takeaways—Lightning round!—Give up, “equity docket,” David—Do oral arguments even matter anymore?—All about originalism—Life as a Justice Antonin Scalia clerk—Law school: to go or not to go?—Click HERE to subscribe to Advisory Opinions 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

Introducing Dispatch Energy, the dispatch's newest weekly newsletter diving into the politics, policy, and innovation shaping America's energy future, presented by our friends at the Pacific Legal Foundation. Featuring a rotating roster of contributors who are experts in their respective fields, each edition will feature incisive analysis on everything from oil and gas and permitting regulations to renewables, climate, and the grid. Head to thedispatch.com slash energy to sign up. Welcome to the Dispatch podcast. I'm Steve Hayes. We have a special episode for you today. Sarah Isker is here because she just interviewed Supreme Court Justice Amy Coney-Barritt over on our advisory opinions podcast. If you don't already follow that show, now is the time. In a moment, we'll have that interview for.

you. But first, Sarah, give me some background on this interview and how it came about. Justice Barrett has been working on this book that's now out called Listening to the Law for some amount of time. We heard tell that this book was coming out, reached out, and asked whether she would want to talk about the book on the podcast. And so David French and I got advanced copies of the book and got to interview her about a week before the book, came out. So last week and embargoed for when we released it this week on advisory opinions. And we went and interviewed her at the court. Her husband and her oldest daughter were actually there in attendance, which made the whole thing really fun. Cool. And how was it? I'm tempted to ask you about

the book, but I'll wait. I'll listen. How was the interview in general, would you say? And what were your expectations going in? Okay. So there's a lot in that because there's like the journalist part of that question, I feel like you go into an interview like this, having a gazillion questions, you're not going to get to them all. And then, of course, even the ones you do get to, you kind of flub how you phrase them. And so you spend the next several days just beating yourself up for like how it could have gone in your head or something. But set that aside. It's also a really hard thing to do an interview as a Supreme Court justice because they can't answer questions on specific cases.

They certainly can't answer questions on, like, future cases or topics that might come before the court. And so, you know, you're trying not to ask them something where you're just going to get a, well, I can't talk about that answer because that's a waste of everyone's time and energy. So you're trying to ask process questions, which, of course, you know, that's what I'm into anyway. So, like, that wasn't any great hardship for me.

But when you're a justice, you're also, I think, so careful. to, again, you have so many guardrails. It's past cases guardrails, future cases guardrails, and you're on a multi-member court. It's not your job to speak for the court. You can only ever speak for yourself. And you also can't speak on behalf of any of your colleagues. So at one point, you'll hear I ask about what they eat for lunch.

And she will be so clear about, well, I'm only talking about what I eat for lunch. I, you know, it's like, okay. Like even on, yeah, even on a question, you know, because they eat lunch after every oral argument in the justice's dining room after conference. They can't talk about cases. And I was like, yeah, so let's like get no one's in there except the justices. So what are they eating? What shows are they binge watching? And like, no, she will not talk about those conversations.

She will only talk about what she eats, what she is binge watching with her husband. I mean, I'm very interested in the answers to those questions about her specifically, but we won't disclose those. right now. This is what we call on the business a tease. If you want to know her answer to Sarah's pressing questions on lunch, you will have to turn to me. Well, the binge watching question was my favorite answer because it happens to be the show that I'm binge watching right now. And so obviously felt a certain kinship there. That could mean about 20 different things. I know. Okay, I'll have to listen for that too. What would you say, I mean, you know, you know the court as well as anyone. You know these justices in some cases on a personal level. You'd followed this. You talk about

this stuff all the time. What would you say was a key insight that you left the interview? Did you learn more about her personally? Do you have a better sense of her personality or a particular part of how she looks at the law. What's a big takeaway for you? She is obviously at like both a very normal person. And if you put a normal person in the position of being a Supreme Court justice and all of, it's not just the scrutiny. It's like all of it. The security measures. The, you know, if you sneeze this way, someone will read into it that way. You know, You can't go to the grocery store. You can't really make new friends.

So you take a normal person, a mom who's been living in South Bend, Indiana, originally from New Orleans, and then put her in this situation. And she's, you know, she was confirmed in 2020, but COVID was going on. So she didn't really move to D.C. Take her seat on the court, physically speaking, until 2021. So we're talking four years of this reality. You know, some of what I think you can get out. of this is like what happens when you put a normal person in this very strange situation

and the moments of sort of guardedness and the moments of not guardedness and then realizing she's not being guarded. I mean, there's like a meta thing going on that can be really interesting about this. In terms of substantively what I enjoyed, you know, she's an academic. She's actually very unusual in terms of her experience coming on the Supreme Court these days. She has never worked in the executive branch or in the legislative branch for that matter, unlike almost all of her colleagues. And, you know, she was an academic for a very, very long time. And so when she talks about things like the purpose of her judicial philosophy and how originalism works, you're getting a very different read than you might get from a Justice

Kavanaugh, for instance. And when she talks about the emergency docket or that interim docket that we've talked about where the Supreme Court is having to decide whether the president's executive order will be in effect while the case is pending through the courts. The second I brought up the topic, you're not going to be able to see this because it's a podcast, but this like smile comes over her face and not that type of smile. The type of smile where you're like, oh, this is the part of the interview I've been dreading. Yeah, yeah, yeah, of course. That's funny. But she gives really, I thought, interesting. answers to that that basically this is all pretty new.

They're trying to figure it out. There's lots of reasons why you don't want the majority writing or writing too much on those decisions. And one of the questions I ask her is, how different will this look a year from now? When it's so new, you know, what types of things do we think the court, this multi-member body will learn between now and then about how to make this see? seem more functional because I think right now the lower court judges definitely don't think it's functional. We have this piece out from NBC News, which includes anonymous quotes from 12 judges

with life tenure that annoys me to no end. But nevertheless, those judges are not pleased with how they're supposed to be divining what the Supreme Court thinks about some of these decisions. The Supreme Court justices obviously are frustrated. And everyone in between, the administration, the plaintiffs, you know, everyone's frustrated with this. So this is not how it's going to look a year from now. I'm willing to bet a shiny nickel on that. But how they work it out, I think, is very much unclear. Yeah, I mean, there are so many different ways you could go with that.

And I'm glad we get another bite at the proverbial apple in a few weeks. But you mentioned the fact that she isn't a normal person sort of thrust into this role. I mean, I think that really, I remember covering her, or talking about her confirmation hearings. And among the many things that came across, I mean, I think the most first and most obvious thing that came across was just how good she is and how polished she was. But I think people identified with her to a certain extent because she presented us so normal. Do people get that feeling from listening to this conversation? or is it harder because she's in this new role and she probably can't actually.

She has to be more guarded. I mean, just to your point, she has to be more guarded. She probably can't be as normal as she would like to be. So, Steve, I'm sure you have found this with other people who have been in the public eye, the more comfortable they sound in this setting, the less normal they actually are

because a normal person shouldn't sound that comfortable. Does that make sense? Yeah, yep. I think that if you assume that I'm right about that, that you will think she's a very normal person. I don't think she sounds, you know, cozy, comfortable with me and David. I think she sounds like a brilliantly smart, slightly uncomfortable person. Well, I mean, she does have to be, I mean, for all the reasons you suggest at the beginning,

she has to be mindful of so many of these different obligations she has and things that she can and cannot say. There's a moment where she references, as they said, her husband and daughter were sitting in on the taping. this is her oldest daughter who has just moved back to DC and at one point she references her daughter having read the book and an edit that her daughter suggests to the book. I think in that moment you hear her sort of reliving a happy memory, sounding really comfortable. You get this slight glimpse into what she might be like around the dinner table. Oh, that's great. Well, I want to encourage everybody to listen to the entire interview. If people are listening to this, our brief conversation here and haven't been listening to every single episode of advisory opinions.

I can't imagine who such a person would be because, as you know, I get up in the middle of the night for when A.O. pops into my feet. You know some people do, Steve. You mock that. I get text by 5am of people who have already listened to the episode. One judge in particular comes to mind who works out. I sometimes listen to it in the middle of the night in case I need to go back to sleep, you know. Then you can, then I can listen to it. Y'all, this pains do you so much to talk about A.O. this way. Like, this is his punishment. I don't know what he did, but he has done something horribly wrong.

What are some other things that people, hypothetical people who haven't listened to every single recent episode have missed? What's been going on? What have you guys been talking about? So, you know, usually we were taking sort of August a bit slow because we wouldn't get a lot from the Supreme Court. And so we would have guests on. did do that this season, but we have actually been mostly limiting, you know, our guest to like half the episode or less because we have so much to talk about that the Supreme Court's doing on that interim docket. And so, you know, you'll have this episode with Justice Barrett.

Our next episode is going to run right into whether you can shoot people on a boat in international waters if you suspect that they're drug dealers. And what happens now with the tariffs? How would reimbursements even work? And then, of course, the Federal Reserve, what's up with that? Is it a thing? Not a thing? Is it part of the executive branch? Is it more like the Second Bank of the United States?

So we have plenty to discuss. I guess what I would say is really important to understand about AO and what Steve has never gotten about us. We are the nerds nerds. You know, as I've said, I'm a process girl in an outcome world. and if you don't want to do process and all you want to talk about is what the best policy is

for the United States and this is not your podcast. But if you want to talk about how you get there and, you know, the history and the Constitution and all that stuff, well then, well then,

here we are. Yeah, well, and I have to say, plugging advisory opinions even more, pains me is correct, Sarah. You can't really understand what's happening in the country. if you don't understand those process questions and how we're likely to get to those outcomes or, you know, abandoning process, which I think is sometimes as interesting or more problematic.

But if, you know, when Congress isn't legislating, you've got a big problem. The president then is held sort of politically responsible for solving all the country's problems, even though he doesn't have the power to legislate. So then you get all these executive orders, then those go to the courts because he doesn't have the power to do those executive orders. And so the Supreme Court really becomes not a de facto legislative branch. We don't really have a functioning legislative branch right now. But they become part of a two branch system and that stool without a third leg isn't working very well.

It's tippy. Yeah. I mean, I think, look, this is why we were so excited to acquire SCOTUS blog and why we're so thrilled with all the work that you and your colleagues are doing there. And just to think about the three topics you just mentioned, those are driving the news about what's happening in our government right now. And you really do have to understand these issues and the process that at least should be playing out in order to understand where this might be going. So I would encourage everybody to tune in. Not long ago, I saw someone go through a sudden loss. and it was a stark reminder of how quickly life can change

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shaping America's energy future, presented by our friends at the Pacific Legal Foundation. Featuring a rotating roster of contributors who are experts in their respective fields, each edition will feature incisive analysis on everything from oil and gas and permitting regulations to renewables, climate, and the grid. Head to the dispatch.com slash energy to sign up. This episode is brought to you by Squarespace. Squarespace is the platform that helps you create a polished professional home online. Whether you're building a site for your business, your writing, or a new project, Squarespace brings everything together in one place.

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Go to Squarespace.com slash dispatch for a free trial, and when you're ready to launch, use offer code dispatch to save 10,000. percent off your first purchase of a website or domain. All right, here are our advisory opinions host Sarah Isker and David French with Justice Amy Coney-Barratt. And remember, for the full episode in their analysis, make sure you head over to their feed on your favorite podcast app and hit the follow button. All right, Justice Barrett, we're going to start with a lightning round. And even worse than that, we're going to start with a case from this coming term that was

also argued last term. here is the lightning round question. The word C-A-L-L-A-I-S is the name of the case. You are from New Orleans originally. This word is coming from Louisiana. The Chief Justice pronounced it K-L-A-L-A. Do you think that's an accurate pronunciation? Well, I would not sit in review over the Chief Justice,

but as a New Orleans, if I just saw that, I would say Kelle. Okay. Next question. The word in Latin means to be informed. I have gone through all of your past oral arguments since you've been on this court, and I have never heard you say the word. Will you say it for this podcast? To be informed, I'm embarrassed to say I don't know what Latin words you're talking about. C-E-R-T, letters, letters, certiorari. Okay, interesting. There's a real divide on the court among that one. Okay, and last, last lightning round question. Is it the emergency docket or is it the interim docket? I say emergency docket. Okay. That's been a, part of our podcast is a live, long running debate over is it shadow docket, is emergency docket, is it interim

docket? I'm the only person in America who's waving the flag for equity docket, which I think is just fantastic. But you've weighed in emergency. Docket. Emergency Docket. All right. Well, the entire podcast is not going to be lightning round questions. Thank goodness. Yeah.

No, we want to talk about your book, your new book, listening to the law. And when I was reading it, one thing that really struck me is I think that the book really does introduce to a lot of Americans. It's sort of lifting the veil on the court where they are able to see how this place works. and from start to finish how this place works, how much of that sort of civic education component was in your mind when you were sort of when you were crafting the book?

Well, that was very much in my mind when I was writing the book because that's sort of why I wrote the book. I mean, I have, and I hope this comes through in the book, great admiration for the court and the Constitution, and I really wanted to share that with people. I talked to a lot of groups, grade school groups, lawyers, I just taught a class last week at Notre Dame, law students.

And you would be surprised how, despite the age range and experience range of the various groups to which I speak, the questions are the same. How do you get cases? How do you decide cases? Do the justices get along? All of those sorts of questions. And I can't talk to everyone, but I could write a book that made those questions and my answer is accessible to everyone. Since you mentioned law school, and we're going to talk about text history and tradition and originalism and those types of issues.

But if you could wave a magic wand, be dean for a day, however you want to think about it, what is the class that you think law students should be mandated to take now that maybe doesn't exist in the curriculum, given the current court, the current jurisprudence of the justices? You know, I don't think that there's a class that I would add, but I think classes should be sure to cover certain topics. So, for example, I think Legreg has been a great addition to the curriculum in the last 10 years or so. And I think focusing on statutes and regulations, because, you know, as you know, your lawyers, so much of law practice is really dominated by statutes and regulations. When it comes to the Constitution, yeah, I think that probably enough law schools don't cover originalism.

And whether the law professor is a critic or is sympathetic to it, I mean, the reality is, you know, it's, it's, it's, out there, and there are a lot of judges who are sympathetic to it, and I think those are arguments that have to be taken seriously. So I think, and you know, many law schools do this already, but I think that having all perspectives and all arguments put on the table is really crucial. Well, let's talk about originalism for a minute, because one thing that was really interesting to me was reading your thoughts on originalism, and really the last third of the book is where you really start to flesh out your thoughts on originalism. And you echoed a theme that we've had in this podcast that originalism is not some sort of magic

formula under which you can sort of plug in a set of facts and a set of precedent and just generate this is the absolute historically correct answer that there is room for disagreement in originalism so one of my questions is okay if someone's hearing this I think one of the I think in some ways the early architects of originalism or the early public advocates kind of maybe misled a little bit that this is more definite and certain than it really is, that it is more malleable than we might think. In that circumstance, what advantage does it have over, say, purpose ofism or other theories that also are somewhat malleable?

Are we still at the end of the day just kind of dealing with the judge's judgment? Well, all judging is a matter of judgment, hence the name. I don't think that the early advocates of originalism misled, but I think it was first wave originalism and it was kind of figuring out how this was going to work. And I think it's important to recognize as originalist scholars like Keith Whittington have

that originalism wasn't new in the 80s. It was something that the court had been doing since the beginning. I think it became more of a self-conscious theory in the 80s in reaction to the court starting to do something that was very different during the Warren and Berger years. You know, as for originalism,

not being a right answer generator, if you have chosen originalism because you think it is a tool of judicial restraint, then I think you have to be very worried about that. I don't know that many people who have chosen it as a theory or who gravitate towards it because it's a theory of judicial restraint, although I think it does have that effect. Any theory can be misused or people can have different opinions if they're judges. And I mean, that's true of originalism too, because people can have different interpretations of history, just like they can have different interpretations of precedent.

They can have different interpretations of what constitutional or statutory text means. But I think in the argument that I make in the book, or actually I try to explain my view in the book rather than arguing it, is that originalism for me is the right way to think about the law, because if you think about the text as what was enacted as the law in terms of the constitution, what was ratified, you know, that's why I'm an original. originalist because I think that's what the law is. Okay, for those reading along at home, you will now open your hymnals to chapter 12. I want to get into the weeds here a little bit on this and on how to do originalism Barrett style. And you talk about intent versus expectations

versus text. And in particular, I find the expectation something that I stumble over, or rather maybe intent versus expectations. You give the example. of a New Year's resolution to follow a healthy diet. Reading here, after happily making that commitment, I might be dismayed to learn that many foods I thought were healthy, say flavored yogurt, protein bars, and sports drinks, are full of empty calories. Tough luck.

If I'm serious about the resolution, I must let those foods go, even if I initially thought I could keep eating them. And you compare this to, for instance, the Alien and Sedition Acts in the Adams administration vis-à-vis the First Amendment. as a, you know, maybe they knew what it meant, but they had the temptation, nevertheless, to violate it. I also have Loving v. Virginia brought to mind from the 14th Amendment, equal protection under the law, but nobody at the time had the expectation that it would implicate interracial marriage.

So how is intent different expectations? Explain this to me. I find it really hard. Well, that's true, segregated schools on the 14th Amendment, too, right? Yep. I think you ratify a principle. You know, you have enacted, I mean, and sometimes the ratified text can be more specific than in other instances. The, you know, example always given is that the president must be at least 35 years old. And sometimes the text that is ratified is more broadly written, you know, and that is true of phrases like freedom of speech and equal protection of the law. But, you know, that diet example that I give, you know, the point is that you have committed to a principle and you can't force. see all of the applications. And so you have to go where the text leads you, even if you are one of the ratifying generation. And it's not just that those of us who come later down the line have to go and follow the text where it leads. Now I think, and I say this in the book, that expected applications can be relevant. They're not irrelevant. So the example that I give in the book is if

I commit myself to a healthy diet, but I talk about eating grilled chicken, then we know that for me, healthy did not mean vegan. So it can narrow the range. It's just not determinative. So that, to me, is a really good explanation for how we should think about maybe the Second Amendment and new types of weapons, or I always like the Kylo case of GPS or heat, what do you call those devices? The heat seeking?

It's not heat seeking. Where you can see in the house, thermal sensing devices, things that they couldn't possibly anticipate. So their expectations are not helpful in that. But again, when you think about racial segregation or something, aren't the expectations like baked in to what they were doing and talking about? I guess I don't think so, because it's kind of the classic problem that we have in statutory interpretation.

You know, there are many minds. And so how can intent ever control? Because you could have had some people in the ratifying generation, whether we're talking about the reconstruction amendments or whether we're talking about the original constitution. some people may have thought, yes, this is what I expected to do. I would expect it. And as you know, there was a big controversy about the Sedition Acts and whether they did violate the First Amendment. People probably would have disagreed about that if they had anticipated the problem and been asked about it. But no one person's intent can control. So the same way, and we talk about that very clearly, I think,

when people are talking about statutory interpretation, but really the same principle applies in the constitutional context as well. So you tease out some interesting. distinctions in the book between text, intent, and context. So the text is the touchstone. You're not looking for, you're not doing a search for, one thing I thought was very interesting in the book, because you talk about the legislative intent would sometimes be retconed or put into, sorry, that's a comic book term, I shouldn't be using that, that the intent would sometimes come in after the act was passed, that people would be messing with the historical record. to alter the quote-unquote intent even after the statute had been passed, which was really interesting.

So if intent isn't the question, but context matters, and you bring up this hypothetical that's fascinating, which is, let's suppose you have a sign that says green vehicles only, and it's a charging station and all that, but then a big gas-guzzling green Ford F-150 pulls up, how do you adjudicate that situation? Is that complete, it's a green vehicle, it's colored green, but the obvious intent, or is it context, is that this is supposed to be for electric vehicles? So if you could sort of tease out, in that hypothetical, which I thought was very vivid, what matters there, the text, the intent, or the context? Well, all language is about context.

Our conversation right now, you know, we know what one another is saying or we understand what we're each saying because of the context. of the conversation and that we're talking about law. So we can't communicate in the English language unless we're taking account of context. And so in that green vehicle's example, it's text and context. It's because you see it in a parking lot. You see it by a charging station. You understand that in context, the word green isn't referring to a color. The word green is referring to environmentally friendly. Let's move to some of the practical aspects of being a justice on the court. What is the thing that an advocate can do immediately to win or lose credibility

with you during oral argument, if any, because part of the conversations also, does oral argument matter anymore? Oh, no, I do think oral argument matters. Losing credibility, I don't think that too many advocates that I've seen. In fact, I can't think of a single one have lost credibility with me. I don't know that I would put it that way. But I think the best advocates are equally interested in answering questions asked by justices who they think they've got and justices who they think they probably never had from the start. And they show equal patience, and they show equal interest, and they don't betray any kind of frustration, and they can be quick on their feet.

I saw one oral argument. The lawyer was utterly amazing. You could tell he was the respondent, represented the respondent. When he got up, he knew from the first argument, he knew from the petitioner's side that his lead argument, the one that he had pressed most in the brief, wasn't going to win. And it's not that he changed the argument. I'm not in favor of that. But he shifted his focus because he could tell, and he did that on the fly.

I mean, he could just tell how he needed to adjust his argument. It could not have been what he had prepared. So it was still within his brief. I want to emphasize over and over and over again that no justice likes it. when arguments made in the court differ from those made in the brief, but just the way that he shaped his argument to fit was completely impressive. Another question, some of these are a little bit grab-baggish, but very much in our areas of curiosity.

We talk a lot about decisions to write separately, when do you write a dissent, when do you write a concurrence, and how helpful is it or not helpful to have multiple concurrences, multiple dissents. How do you make that decision? When do you decide? I'm going to weigh in, I'm going to concur here, I'm going to dissent here separately. I think about it, so I'm just sharing my own view. My own view, what I say in the book, I describe it as a little bit institutionalist. I'm content. My default is that the majority opinion, if I'm in the majority, speaks for the court, and I will add something if, for example, I don't join all of the majority, you know,

or if I just concur in the judgment, then usually I will write to explain why I didn't join that part or I didn't join the opinion. Other than that, I will write sometimes when I think it's important to emphasize the scope of the opinion, and then occasionally I will write if I really think there's an argument that needed to be answered, especially for myself and maybe the way that I view the law that the majority didn't answer because maybe it's a methodological question on which there may be some disagreement in the court. That's why I wrote in Biden versus Nebraska. I wrote about the major questions doctrine there and I thought Justice Kagan had made a good point about, you know, major questions being get out of text free card. I mean, I disagreed

with that point. When I call it a good point, I thought it was a point that needed to be answered. And so it was a point that I chose to answer. So those are the circumstances under which I'll write separately in a concurrence. Okay. Emergency docket, as you call it. Am I going to have to give up on Equity Docket? I think I'm just going to have to give up. Does anyone else refer to it as the Equity Docket? Well, I will say this, that David Latt's newsletter, he had a poll about this, and apparently Equity Docket was winning among the microscopic portion of its audience that were libertarians. So I have the majority of the 2% on that. So yeah, I might have to give this up. I mean, we've heard Justice Kavanaugh

when he went to, was it the 6th or 8th Circuit conference, he referred to it as interim docket. I just feel like we're, we can't even agree on the name of this thing. It's turning into a problem. Okay. On the emergency docket, though, one of the controversies with it is whether we're seeing writing from the court explaining the majority's reasoning and the precedential value of those decisions when we don't see writing from the majority on the reasoning. So we might have 15 pages from dissenting justices, but then lower courts are supposed to follow this. We've seen the court now show some frustration that lower courts are not following it enough

or hewing not only to its decision, its judgment, but also its reasoning. What is this going to look like a year from now? Are we settling into this new system? And we'll hear the answer to that question when we get back from the break. With Amex Platinum, access to exclusive Amex pre-sale tickets can score you a spot track side, so being a fan

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Installed window sensors, smoke sensors, and HD cameras with night vision? No. And you set up credit card transaction alerts, a secure VPN for a private connection, and continuous monitoring for our personal info on the dark web? I'm looking into it. Stress less about security. Choose security solutions from TELUS for peace of mind at home and online. Visit TELUS.com slash total security to learn more. Conditions apply. And we're back, Justice Amy Coney-Barritt, answering the question about the emergency docket. I'll start by saying, I think that the emergency docket is new for judges at all levels of the judiciary.

Why is that? Do you have a sense of why it feels new? I think I would have to be someone, an academic, who is studying the statistics and the numbers, you know, whether it's the rise in the number of emergency orders, maybe there's a rise in the amount of litigation. I just don't know. maybe it's a rise in the nature of the problems that we're currently facing. I don't know. I mean, certainly district courts are used to seeing PIs and having to act quickly. But when I was on the Seventh Circuit, we had motions panels. And I can't remember. I think we sat for three weeks at a time.

Maybe I wrote a paragraph or two in response to one of those. It was pretty light duty, including requests for stays or requests for injunctions, you know, that kind of emergency relief. And that wasn't that long ago. We're talking five years ago, six years ago. Now, when you look at what Court of Appeals judges are facing, they're facing many of the same questions. And I would say that motions duty, especially in the circuits that are seeing a lot of these right now,

it's a lot more onerous than it used to be because court of appeals judges are facing this. And obviously, you know, as your question suggests, we are facing this too. And so I think we're all trying to figure out what the best way is to handle this. I talk about in the book the evolution of oral argument and how the court has handled its merits docket.

and that was over, you know, 200 years. When you think about how new the emergency docket is, I mean, we're definitely in the infancy. I'll just say a couple things about the decision to write. You know, I think it's very complicated when to decide whether to write. As you say, we're figuring out how to think about precedent on the emergency docket, and when you write a lot, there is a lock-in effect. One of the drawbacks of the emergency docket is that there's no opportunity for percolation,

there's often not opportunity for a lot of reason to position opinions below. So we are in a position where we might be writing sooner than we want to be or with less information that we want to be. So, you know, sometimes less is more. I think also writing for the majority takes time. You know, I describe in the book on the merits docket, you know, the going back and forth and we exchange memoranda and people are making suggestions about phrases and sentences, because people want to get it just right.

If we're going to call it the emergency docket and not the equity docket. I concede reluctantly. Or even the interim docket. That implies a short amount of time. You don't have the time to go back and forth if you're actually going to dispose of these things quickly. It's not a question of can you write 15 pages

in the amount of time. It's just the nature of a majority opinion is different than the nature of a dissent. So a dissent can say whatever, and this is true of a concurrence, too, can say in the author's own voice, whatever it is that person wants to say without having to worry about the lock-in effect, without having to worry about getting every phrase to be something that a majority of the court can sign on to. So that makes that a little bit different, too.

So I think there are a lot of factors, you know, just including the two I mentioned, speed, and having to think about the lock-in effect, you know, that the court has to take into account, and the court has to make those judgments themselves about whether to write on a fast timeline. Shifting a little bit back to originalism, one of the interesting elements of the text history and tradition debate to me is why are, when we get to the history element, I'm very familiar with sort of the, when is the history relevant? Is it immediate post-ratification? Is it during the ratification process, et cetera? But there's also a kind of a larger question that hovers over for me. I see a lot of these opinions, especially in text history and

tradition has been especially prevalent in the Second Amendment context that go back to legislative enactments, a legislature in Kentucky in 16, I mean, not 16, 1868 or whatever, or a town council in 1872. But these are not interpretive bodies. These are legislative bodies. And it struck me as interesting that the court would go to legislative bodies to determine the meaning of a constitutional provision, when that is not the role of the legislative body. It's a lawmaker. It's not a law interpreter. And so how are judges supposed to look at these post-ratification legislative enactments? I guess I would say I think it's a little bit more complicated than that, David, because we have always looked at legislative enactments. Think about the first Congress. So, you know, I taught federal

courts for many years. And we always, you know, I would say, Hardin Wexler, often refers to what the first Congress said, including in the Judiciary Act of 1789. So we have treated that in the past in some contexts as evidence. So I don't think legislative enactments are out of bounds as something that would be evidence. I do think that the text, history, and tradition debate is one that is evolving on the court. You know, it's one I've written about in some of my separate opinions. I think we have to be careful with it. I think we have to be careful with it because what is the basis for treating tradition as

determinative. I've said an opinion, so I'm not talking out of school here, you know, when we're starting to get pretty far away from the founding. I mean, maybe there are some reasons in some circumstances to use it. And doctrinally, the court has made it part of the test in areas like the due process clause. But, you know, I'm not sure that it's something that applies equally across all provisions. So I do think that's very much an evolving debate. Part of at least a theory as to the emergency docket, or as even to the role of the court currently, taking a bigger chunk of media attention and otherwise, whether it's confirmation hearings or decision hand-downs, is that Congress is doing less. And so you have the presidency doing more, and whether the president is the

one to get to do more, then ends up in the courts. What do we do when we have two branches that seem to be dragging a third branch along, and how are we supposed to ensure that, you know, per your judicial philosophy and ours really, like judges are not supposed to be policymakers. They're supposed to be thinking about those statutory texts or the Constitution, the separation of powers, federalism, which you write about.

But all of that really relies primarily on having a functioning legislative branch. Well, I guess I can only talk about the problem from my own perspective, and I would say that the judiciary is by design a passive branch, and we take what comes. So we don't get to pick and choose what cases get filed in the district courts. You know, litigants are the ones that bring the cases, and when they come to us, litigants file them. I mean, it is true that at the court, we have some discretion, at least, you know, on the certiorari docket. You know, we have less discretion, frankly, in the emergency

docket because as Justice Kavanaugh has written, each one has to be granted or denied, whereas the cert docket, we just have a lot more discretion about what we take and what we don't. But even on that docket, you know, when things are of national importance and often things, the kinds of things you're referring to are and very easily satisfy the cert standards, it'll be irresponsible not to take many of those cases. I mean, there are ones that we really do need to take when there are circuit splits and that kind of a thing. We just have to take what comes, right? I mean, we don't go out and look for the disputes. The disputes come to us. And one of the things that I love, and I quote this in the book,

you know, I think it was Justice Powell and Justice O'Connor at different times, pointing out that the Supreme Court is a fairly reliable mirror of the domestic issues confronting the nation. And I think, you know, when you look at our docket right now, that's certainly true. I mean, And our docket is seeing, you know, to the extent that we see immigration, for example, you know, there are, you know, right now politically a lot of disputes about immigration. And so, you know, like night follows day, we have disputes about immigration that are on our docket. In the book, one thing that I found very interesting was your discussion of clerkships and clerk

life and your life as a Justice Scalia clerk. And it was interesting at one point in the book you talk about that he did a lot of his own work, so to speak. In other words, that he was doing a lot, that he was taking the lead and drafting, that he was doing an awful lot of work that left you with different workloads and other clerks and things like this. How influential was that Scalia model and that the way Scalia ran his chambers, the way Scalia did his job, how influential has that been on your own approach. I think my experience has been it's a little bit like parenting. You parent based on what you like and what you didn't like from what your parents did, right? And so I worked for two

great judges, Judge Silberman and Justice Scalia. And so I would say that largely because I had such good experiences, I have modeled what I do off of the way that they work. I will say that I do do some things differently. Justice Scalia required very short bench memos and he did not like if you exceeded his, you know, very strict lengths of, like, I can't remember what they were a page or two, maybe even that little. I just want regular bench memos. I really do because what I do is I read the briefs and I do all of my preparation, obviously, you know, in the weeks before argument.

But on the morning of argument and on the morning of conference, I want to be able to just kind of, you know, refresh my memory. And so I will look at the bench memo with my, you know, own notes added in. places where I disagree with the clerk, places where, you know, I've asked the clerk to add more research or fill out a different issue. So, you know, that's one way in which I've diverged. But otherwise, Justice Scalia had his law clerk's right first drafts, and then he would transform them. Now, that's basically the approach I use. I have my law clerk's right first drafts, and then I take them over and, you know, I transform them. You know, Justice Scalia was

working at a time when the computer systems at the court were a little bit, shall we say, less advanced than they are now. So now my clerks and I are going back and forth in Red Line, you know, in Microsoft Word, you know, doing comment bubbles and that sort of thing. So technologically, things look different. Speaking of writing, you've described yourself in the book as more Hemingway than Dostoevsky that you had to be forced to put in adverbs and whatnot into the book. You also, though, this is the part that really stuck with me, that you start your writing process for the book, at least, on pen and paper, because working on a computer basically tempts you into editing in real time. Oh, I do that for opinions, too, and I used to do that for law review articles. I start with pen and paper. Really? Okay, just describe. Are we talking a legal pad? What kind of pen are you using?

I don't even know if my hand works to write out sentences any longer. You know, I start with pen and paper. I use a legal pad, and I am partial to pilot black ballpoint pens. I do that because whatever kind of writing I'm doing, whether it's, you know, draft opinions or the book or, you know, in the old days, law review articles, I find, as you said, I'm less tempted to keep obsessively editing each sentence to get it perfect. And to make the tasks go faster, to make it flow, I find it better to be able to discipline myself to just. Right. And then I can go back and I can perfect the pros, but just getting the analytical frame of the argument out first, I think that's what I've got to do to keep the process rolling. Do you type it up yourself? And then do you edit while you're typing? That would be really

hard for me to type up something I wrote by hand without doing the edits sort of be like, oh, that's terrible. Well, I should say too. I don't write the whole thing out. I mean, I'm doing it section by section. I'll draft out and do outlines of certain parts, and then I'll fill in on the computer. So it's not a perfect, let's say I have 30 pages of cursive on a legal pad. It's not quite like that. It's a lot of legal pads that they're going through in the Barrett chambers, I think. I was also very interested in your description of the conference. So there's some elements, many elements of the book, I think that if somebody had never heard about the, never really read about the court, never really knew how it worked, that would be particularly interesting. And to me,

the conference is was very interesting in the way in which and maybe describe a bit how this process works where you're speaking one at a time on cases in order of seniority with the less senior you are you feel like the less opportunity you have to persuade but sort of walk through that process because I think that that's a part of the book that really lifts the veil on the decision making process itself in a way that I don't think that your average person understands how these decisions are ultimately arrived at? Conference, the only people in the room are the nine justices. And I think that in and of itself is important for Americans to know because I think that the Supreme Court is the one branch

of government where Americans know that the justices are doing their own work. We do not have law clerks in that room. We don't have assistants who are transcribing. It is just the justices. And we go around the table and we talk about the cases. You know, different chief justices have run conference differently. I was obviously never in the room with Chief Justice Rehnquist, but, you know, the stories told about him, this is not anything confidential, this is just, you know, the lore that's out there, is that, you know, he ran a very tight ship, just like he did at oral argument, you know, he kind of wanted it to go. Chief Justice Roberts, you know, is a different person, so he has his own style, just like he does at oral

arguments. But we do. We speak in order of seniority. Each justice goes around the table, his or her view of the case and cast a tentative vote. Justice Stevens, in one of the books that he wrote, described his frustration because when he was junior justice, he did feel like once it got down to him, it was kind of like, well, you know, everybody's already said their piece, what's left for, you know, me to say that could influence anyone. And, you know, I'm second to last right now, so, you know, I go eighth. And I guess I don't necessarily feel frustration. I think, you know, just as in a family, there are pros and cons to being oldest and youngest. You know, I think that's true of seniority as well. On the one hand, I can

shape my comments to what others have said before, and I know what's coming, and I know what issues people are particularly interested in. And you don't get that opportunity if you go first or second or third. The flip side is, yeah, you know, you come towards the end of the line, but people can come back around and say, oh, wow, you know, that was really, that was really interesting. think about that more. So it's not like, you know, everything is set in stone. But, you know, when Justice Stevens said that when I read that, I thought, ah, yeah, I hear you. I mean, I know what you're talking about. But persuasion does occur. In other words, there are times when the justices do win their colleagues over, maybe on a point or maybe on changing from yes to no

or no to yes. I mean, how often is persuasion actually in play? Persuasion is part of, of the process. Yeah, persuasion is in play. And persuasion, I think, is particularly important when it comes to the scope of the opinion. Persuasion is important when there are multiple paths to decision. You know, persuasion is important, you know, because people can make a case, you know, this is how we should frame a decision, or this is where there's common ground. And we are very much a multi-member body. I think that sometimes I've had the experience with some law clerks at the start of a term or some students thinking that every everything lies in the hands of the author of an opinion. But that's really not true. I mean,

I'd say in the book, the task of the author of an opinion is to fairly reflect the views of the conference and the views of the conference are stated at conference. So it's not just what Barrett thinks, right? It's Barrett doing the drafting, but trying to represent the views of the conference. Okay, after conference, you head to the Justice's dining room where Marbury and Madison sit and judge you while you eat, and there's no case talk there. Will you talk a little bit about the justices off case talk? Yeah, so this is a longstanding tradition of the court to eat together, and I think that's really important. I think it's important to get to know one another as people. You know, one of the themes that I try to draw out in the book is that there are things

about the way we do things at the court that I think would be healthy for everyone to do all of the time. And I think spending time together and things like meals or other social time where you're not talking about work or, you know, especially things that you might disagree about, you know, it's opportunities to build relationships with people as people. What does Justice Barrett bring to conference lunch, post-conference lunch? Oh, I've gotten teased for what I bring to lunch because it will often tend to be healthy. And not that other people don't, and I'm not revealing anything about what other people eat and they're the dietary choices. But, you know, I have brought, I bring yogurt a lot. My oldest daughter got me into chia seed pudding, so I've made cheese eating

pudding and brought that. Do you talk about what, you know, you're binge watching on TV. What is your go-to show right now? Oh, my go-to show. We're Jesse and I are very much waiting for the next season of Slow Horses. Yes. Thank you. We really enjoy that. Enjoy that. Thank you. I just started it. Yeah. Oh, did you just start it? You'll like it. On episode three of season one. Yeah. Excellent television. Excellent.

It's really good. Okay. You have to ask our last question. You know the question. All listeners will know the question that we must ask of Justice Barrett before we let her leave. So this might be the highest stakes question because we have personal rivalry over your, we're invested in your answer in a personal rivalry. And that is. Two other justices have weighed in.

And so it is this. if I am a young person and I can get into a very good law school, but I don't know if I want to be a lawyer or not, should I go to law school as an option-expanding choice, or should I not go to law school unless I'm certain that I want to be a lawyer? I think it's a range. I mean, can we ever really be certain in a 100% way that we want to do anything? So I don't think certainty can fairly be the standard. So I think it depends where in that range you fall. You can do a lot of things, as you both know, with a law degree that don't involve the practice of law and being at a big firm. So it can be an option-expanding choice in that way.

What I will say, and what was very important to me when I made my own choice of law school, is that if you, depending on where you fall in that range of certainty and what you think you want to do, I very much think that students should take into account how much debt they are going to wind up with when they finish. So I think there is a big difference between going to to your flagship state school, if that has a really good law program and the amount of debt you will take out of that, from going to the most expensive private school just because it was the best school you got into. I think scholarships, you know, I had a full ride to law school, and that's one of the reasons why I chose Notre Dame, not the only reason. I was, that's the reason

I accepted, not the reason I applied. But that factored into my decision because I didn't want to be tied down to having to go to big law. I wanted to have a range of choices. including deciding not to practice law at all. I don't know, David. I don't know who won that one. I'm going to take the victory, I think, just fairly. I would say it's a majority opinion. But do I get Breyer and Gorsuch then?

Is it 2-1? No, I get Gorsuch. It's 2-1 for me, and with a Barrett concurrence that is agreeing with some of the dissent. So that's the way I would put it. Justice Barrett, your book, Listening to the Law is available now,

everywhere that books are, I guess. Thank you so much for joining us on advisory opinions. I'm sure you're curious what David and Sarah thought about what you just heard. For that, you have to listen to advisory opinions.

Find it on your favorite podcast app. And I'll be back with the Friday Roundtable later this week. See you there. Introducing Dispatch Energy, the dispatch's newest weekly newsletter diving into the politics, policy, and innovation shaping America's energy future, presented by our friends at the Pacific Legal Foundation,

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