Steve Payne (00:04):
Welcome to the Columbus School of Law at the Catholic University of America. I’m Steve Payne, Dean of the Law School, and welcome to our special guest Justice Barrett, with whom we are very grateful to be able to spend some time this afternoon. Welcome to Dr. Peter Kilpatrick and Nancy, the President of the Catholic University of America, and to Dr. Aaron Dominguez, the university’s Provost. Welcome to members of the University’s Board of Trustees, the Law School’s Board of Visitors, members of our faculty and staff, and all of our other distinguished guests and students. We’re glad you’re here.
(00:40)
I’m just going to say a word and then we’ll get going. I think it’s fair to say that we’re a community intent on maintaining our tradition of civil discourse and our basic, though reflective and often critical respect for our institutions of government. When on occasion we find ourselves in opposition with others or with one another, and of course, sometimes we do, I think our approach tends to be consistent with the idea of a loyal opposition, so to speak. Still willing to observe basic notions of fair play and decency. Still willing to assume that the other side is likewise seeking the common good no matter how misguided we might think their approach may be.
(01:19)
And loyal to the notion that a fundamental relationship of trust must be conserved, such that the matters that have set us in opposition, however important they may be, should not be permitted to disturb the very root of our relationship, our shared understanding that we’re all human beings, all neighbors made in the image and likeness of our creator, and therefore, all with magnificent dignity, but desperately in need of communion with God and with one another. We’re a community that seeks the truth and that still believes that there is such a thing to find even if through progressive approximation because of our human weaknesses. We do so with the tools God has given us, and that’s reflected in part by hosting opportunities to bring reason and faith into dialogue within the academy.
(02:11)
We don’t just do that for fun, although of course it can be quite fun, we do it to educate terrific lawyers and people who go on to serve their clients in our civil society well. They are impressively represented in this room today by our alums and current students. We invite everyone into that tradition and process this afternoon. Welcome, and I hope you enjoy the event. And I’d like to say that after the event has concluded, we ask everybody to please remain seated while the Justice exits. And now I’d like to ask our university chaplain and Dominican father Aquinas Guilbeau to please lead us in prayer. Father?
Aquinas Guilbeau (02:50):
In the name of the Father and of the Son and of the Holy Spirit. Heavenly Father, maker of all things and ruler of all, you govern creation according to your wisdom and love. In creating men and women in your image, you made us to imitate you, to know truth, to love the good, and to govern ourselves, our homes, and our communities. We pray this evening for those you place in authority over us, those men and women who participate in your governance in a special way. Our parents, our pastors, and our political officials. Give them the wisdom always to perceive the common good clearly, the courage to love it ardently, and the prudence to defend it vigorously.
(03:49)
We pray, especially for Justice Barrett, our guest this evening, bless her with the Spirit’s gifts of wisdom, understanding, and knowledge so that she might fulfill her duties to our nation with confidence and grace. Bless her fellow justices, her clerks and staff, and all who carry out the work of our land’s highest court. May the court be an instrument of the justice that you measure out in nature and in grace. Bless Justice Barrett’s family, bless our university and its law school in particular. May the faculty, staff and students who seek justice here enjoy the care and guidance of the mother of the just one, who is herself the mirror of justice as she reflect on our minds and hearts, the justifying love and mercy of her son. We ask all this through that son, Christ our Lord. Amen. The name of the Father and of the Son and of the Holy Spirit.
Kevin C. Walsh (04:57):
Justice Barrett, welcome.
Justice Barrett (04:59):
Thank you for having me. It’s great to be here.
Kevin C. Walsh (05:02):
This is the inaugural event of the second year of the CIT project, and I think the last time we were in the same room in an academic setting was at that other Catholic law school, Notre Dame, for the symposium that you helped organize as a professor for Justice Scalia’s legacy.
Justice Barrett (05:21):
Oh, right.
Kevin C. Walsh (05:21):
So it does seem a lot has changed since then. And because a lot has changed, I just want to make sure at the outset that we get some of the ground rules in recognition of your judicial responsibilities, your ethical obligations and things like that. We won’t be talking about specific cases or pending issues that will come up in your judicial capacity. That doesn’t mean we have to avoid substantive discussion, but just as appropriate level set about, right?
Justice Barrett (05:51):
Yeah.
Kevin C. Walsh (05:51):
Okay.
Justice Barrett (05:52):
Yeah.
Kevin C. Walsh (05:52):
Okay, good. So our project is called the Project on Constitutional Originalism and the Catholic Intellectual Tradition. I want to start with originalism and particularly maybe how the view has changed given the changes where you are in the legal profession. So in this shift from theory to practice, as a matter of theory, as a scholar, you developed views about originalism both in a judicial setting as well as for other actors like Congress. I have to think the view looks a little different from the bench, maybe, maybe not. And that’s the question. How has your experience as a judge changed the perspective that you had on constitutional originalism as a law professor?
Justice Barrett (06:42):
Kevin and I spent a little time on the phone yesterday, we were talking about some of his recent work. And I think actually this has been fun talking to Kevin and I was reading some of his recent articles, to put my academic hat back on for a couple of days. But what struck me, Kevin, when I was reading the piece that you and Jeff had written together in the Georgetown Law Journal a couple of years ago, is that when I was a law professor, I spent a lot of time thinking about those questions like originalism as a theory of law, as opposed to originalism as a theory of adjudication. So as opposed to the more theoretical questions of why originalism, why might we think this? On a day-to-day basis, I’m just thinking about how, in an originalist opinion, am I doing originalism?
(07:35)
And I think a big difference between my life before in thinking about the law as an academic and as a teacher, and my life since I’ve become a judge, is a compressed timeframe. In academia, you have the luxury of having a lot of time. So you might get a grant and you can spend the whole summer thinking about something. You can work in the school year, you can go present it to other faculties, talk to your colleagues about it. The pace, certainly at the Court of Appeals, but at the Supreme Court as well, the pace is just much faster. So you don’t have as much time to reflect as you do as an academic. And so that’s changed things.
Kevin C. Walsh (08:16):
So I wonder about that, because on the one hand I can see the faster pace for any given case. On the other hand, you’re laying down tracks with your precedent and you’re stepping into a history of interpretation of particular clauses. So even among the very broad theories though of originalism that are out there, there’s some who say that at least in some of the courts’ more recent cases, and it’s a range of issues, it could be substantive due process, it could be establishment clause, some First Amendment, Fourteenth Amendment cases, that actually originalism has no bite. That what’s really doing the work instead of original law is some version of text, history, and tradition, a kind of legal pluralism. I did bring my pocket constitution-
Justice Barrett (09:15):
Oh, [inaudible 00:09:15] Kevin.
Kevin C. Walsh (09:16):
No, no, no, for the text. So here’s the question, to motivate, I think this contrast between originalism. And one argument for originalism is you take an oath to support this constitution, right?
Justice Barrett (09:28):
Right.
Kevin C. Walsh (09:29):
With text, history, and tradition, you have T, H, A and T. That traditionalism. Is there a difference between this kind of constitutional originalism and what’s happening with text, history, and tradition or that kind of approach?
Justice Barrett (09:46):
All right, let me bracket it off the last T in the mix, the tradition and talk first just about text and history. So the central premise of originalism is that the original public meaning of the enacted text, of the ratified text controls, and that it’s a constraint. So the fixation thesis and the constraint thesis. So that text controls, and when you try to figure out what that text meant at the time that it was ratified, because that’s when it became law, that was the law that the people ratified. That was the law that in the exercise of popular sovereignty, that law became our own. So when you’re looking at text and you’re considering history to figure out what the meaning of the text is, you’re really focused on text even though history will inform the meaning. You’re really trying to figure out the semantic meaning of the words.
(10:35)
So we know that domestic violence in the constitution does not refer to the abuse of a partner because we know the context of the constitution, we can look at it. When we’re deciding what is a search or what is a seizure, or what is speech, or what are arms, what is the nature of the Second Amendment? All of those things, when you’re focused on the text, that’s zoomed in at the most narrow level or the greatest level of specificity, you’re asking, what do those words mean? And then you have to look at the context. So you’re zooming out a little bit too, because you’re not just using dictionaries and you’re not just looking at corpus linguistic databases, for example. You’re looking at how people understood it. So that’s where you’re looking at Madison’s Notes from the convention or the Federalist Papers or other contemporary commentary looking at Tucker’s Blackstone.
(11:28)
And those kinds of things, it’s not that anyone is determinative. It’s not like we’re trying to channel James Madison, but all of those things, Federalists and Anti-Federalists Papers for that matter, give you a sense of what the debate was, so what was the context in which people were speaking? So I think to this point, that much has been kind of common ground among originalists, those pieces of it. I think the tradition piece is what’s become a hotter topic more recently. And I think that’s because if it’s mentioned in Bruen and some cases like that-
Kevin C. Walsh (12:05):
So can we talk about tradition as the… How to put it? So one way of thinking about tradition, there’s different ways of thinking about tradition, but one way might be something like post-ratification practices. So certain practices. And maybe we can even distinguish tradition at the level of practices from judicial precedent, and this is one of the debates as to whether practices that develop under a precedent matter. But on the level of post-ratification practices, I’m wondering, is there a debate on the court right now about the significance of post-ratification practices? You mentioned the case of Bruen, this was a Second Amendment case. And in that one you wrote a concurring opinion and you noted that Justice Thomas did not resolve the issue of the significance of post-ratification practices. But then in another opinion by Justice Thomas, you wrote a concurrence that, and this is the Samia case about the confrontation clause. And in that one you noted that the post-ratification evidence relied upon by the majority was it irrelevant? So there’s one where… So yeah, is there-
Justice Barrett (13:26):
I didn’t join that part of it either.
Kevin C. Walsh (13:28):
All right. And so it seemed you went from the, “Okay, this is not taking a position,” to, “I’m taking a position in the concurring opinion,” and it seemed to be different from Justice Thomas. Is that a fair reading of where things are in the court?
Justice Barrett (13:43):
I think this is a new debate and I couldn’t say exactly what Justice Thomas, for example, thinks about the role of tradition. So I think what I can say is just what I have been thinking about the role of tradition and why I wrote separately in those two cases. So Bruen covered a lot of historical ground. It went back to the 1300s all the way up to ratification, and then it continued on past-ratification through most of the 19th century. I think we have to be very, very careful in the way that we use history.
(14:20)
The old saying about legislative history, those of you who are law students have probably heard looking at legislative histories, like looking over a crowd and picking out your friends. I think using history can be like that too. Why does one period… Why is, say, 1892, if you’re interpreting something, if you’re interpreting the Bill of Rights as against the federal government. So we’re putting aside the Reconstruction Era question. So if you’re interpreting, say, the Fifth Amendment as it was understood in 1791, why are we looking at things that come later? It becomes a harder question when you’re talking about the states because then you have to decide, is the relevant moment in time 1791 when the Bill of Rights were ratified, or is it when they were incorporated? Which can either be when the Fourteenth Amendment was ratified or is it at some point later than that? I think there are a lot of hard questions there. So I think I’m digressing a little bit.
(15:20)
I think we have to be very careful in the way that we’re using history. And I think there’s no debate that the history surrounding ratification is relevant to this question of the original meaning. But I think there has to be an explanation. If you’re looking beyond that, there has to be some explanation of why it matters. And I can think of multiple reasons why it might matter in any one particular case. The pre-ratification history, that was unique in the Second Amendment context because Heller, which was the case that proceeded Bruens, said that the Second Amendment codified a preexisting right to bear arms. And so there was a reason to look back fairly far because the court was trying to figure out what was the nature of that right if we understand it as one that pre-existed the Constitution itself.
(16:10)
Once you’re moving forward, I think then it just gets a little bit trickier. Why are we looking out at this other history? And I think Kevin, you alluded to one reason why it might be relevant. And courts aren’t the only ones that set precedents, political actors set precedents. We look at the actions of the first Congress when we’re trying to figure out. The first Congress was contemporaneous to the ratification. Many of them participated in the state ratifying conventions and in the Constitutional Convention. And so we look at evidence of what the first Congress did as some evidence of how the Constitution would’ve been originally understood.
(16:52)
But political actors, presidents, Congress, people, it’s that precedent. Congress actually, when I was a law professor, you were mentioning that congressional originalism piece that I did. I spent a lot of time looking through really interesting Senate precedents actually. Congress accumulates some of its own precedent. And remember, not everything is a question for the court anyway. There are political questions that only the political branches address. OLC and the executive branch accumulates its own kind of executive precedent.
(17:24)
So all that is to say when it comes to tradition, one way to think about it is that it can be relevant as some sort of precedent. What weight one gives it, that’s a different question. How thick it has to be, I’m looking at you, Mark. When does it count as tradition? I think those are different questions, and for me, tradition would certainly never… Tradition or any kind of practice could never actually surmount what the original meaning was.
Kevin C. Walsh (17:56):
So text, history, and tradition, but we have to be careful about both history and tradition and understand why we’re using them.
Justice Barrett (18:04):
Yes.
Kevin C. Walsh (18:04):
And maybe it could vary too. So I know we’re not going to ask about pending cases, but can I ask you about one of my favorite cases by Justice Scalia? So this is the Burnham case. So this involves personal jurisdiction, and it seems to me one of the clearest examples, and for all our 1Ls that you may have covered this already in civil procedure. But Justice Scalia’s reasoning, it was a case about tag jurisdiction. So if someone travels through a jurisdiction, they get served with process. Does that comport with traditional notions of fair play in substantial justice? And Justice Scalia said, “Look, forever it’s been this way, and that must be due process.” Would that be a kind of fair, good use of tradition or is that even that kind of… It needs more, it needs more somehow?
Justice Barrett (18:57):
Okay, so I think that’s a complicated question and I think it gets into some of the tricky things about using tradition. I think on the one hand, yes, when you’re thinking about what process is due, then I think thinking about tag jurisdiction the way Justice Scalia did in Burnham can make sense, we can say, “This is such a deeply rooted process. We’ve always thought…” At the time of the ratification of the Fourteenth Amendment, in that opinion, Justice Scalia went back and traced it and said, “At that time, this practice was widespread. And it’s hard to imagine that when the states ratified the Fourteenth Amendment, they were saying that a practice in which they all accepted the tag jurisdiction was sufficient for establishing personal jurisdiction.” It’s hard to imagine that they thought that was unfair process, unfair procedure.
(19:44)
Okay. Also remember in Burnham though, part of the reason why it was tricky was because of International Shoe. And International Shoe, which 1Ls, 2Ls, and 3Ls, and lawyers might be having flashbacks, but 1Ls, you might be just getting to it. International Shoe talks about fair play and substantial justice. And Justice Scalia wasn’t claiming in Burnham that International Shoe itself was an originalist opinion. And so I think then tradition plays in because when you’re thinking about traditional notions of fair play and substantial justice as defined by International Shoe, that precedent points you to the tradition question.
(20:21)
And I think that’s the same thing when you’re talking about the Fourteenth Amendment. If you’re accepting the Fourteenth Amendment, if you’re accepting the traditional substantive due process test in Glucksberg, that’s pointing you to tradition. And are you using tradition because you’re working within precedent? Are you using tradition because of some idea of writing on a blank slate and looking for the original meaning? I think those are different questions and the waters are muddied.
Kevin C. Walsh (20:47):
That makes sense. And perhaps it was cheating a little to take a doctrinal test like International Shoe that builds in. Because it’s traditional notions of fair play and substantial justice. So there we have a convergence in some ways with the doctrine incorporating a traditional test. So that then gets to another question. So we have text, history, and tradition, and then we have these doctrinal tests that are out there. It also seems that, and I think it’s good for law students, because parts of the MBE, the multi-state bar exam may have to be examined in a little bit because one of the staples of constitutional analysis is tiers of scrutiny. We look at particular kinds of rights and we assign a kind of means-end test.
(21:39)
The court didn’t do that in Bruen and the court has moved away from, or may be moving away from tests. And I’m not saying to predict the future, but how do we understand something like tiers of scrutiny in the framework where we started with text, history, and tradition. Okay, putting aside when doctrine lines up with tradition, what about doctrinal tests that really are 20th century inventions? How does one in reasoning through cases on the case by case basis, how do you think about the basis for those and whether those ought to be continued or not?
Justice Barrett (22:25):
Okay, I want to say one little thing just to add to my answer about tradition and then answer that. In thinking about all of this stuff with Tex has strand tradition, I do want to just add that I don’t think that Bruen or Samia actually clarified what it meant by tradition. And tradition could vary [inaudible 00:22:44]. And I think it’s perfectly consistent with Bruen to say that the tradition talking about because of the facts of Bruen itself, which was a Second Amendment case, that the tradition referred to was the tradition that predated the ratification and traditional regulation of guns at the time. And then going forward, you can still look at tradition and you can say, as a powerful rhetorical point, “Look, not only is that what it meant then, but nobody going forward thought any differently.” I just wanted to make sure that I was clear to say that I don’t think I’m willing to say that Bruen ushered in this text, history, tradition test that tradition means that all of a sudden we sweep it in. I think that’s a turning point on that, thinking about that.
(23:36)
On the tiers of scrutiny and doctrinal test, I think there’s two parts to that question. One is the world as we find it and one is the world as we might want to create it if we were creating it from scratch. The world as we find it, and I believe in stare decisis and I believe in precedent. And the world as we find it is full of these tests, is full of the tears of scrutiny. So I think the question of what is one to do? I think if you’re in the First Amendment area, I don’t think the answer is to say, “We’re going to strip all this down. We’re going to throw out all of the rules about content discrimination, viewpoint discrimination, public [inaudible 00:24:22], et cetera, government as speaker, and strip it all down to the studs.”
(24:26)
Nor do I personally think it’s incumbent on originalists to do that because I think that originalists can take as given background. I wrote a little bit about this when I was a law professor. I think originalists can just take things as given. If the question’s not called, if no one’s asking you, if you haven’t granted [inaudible 00:24:45] on that question, I don’t think originalists are obligated to take everything down to the studs so that a First Amendment case is granted on say, like Shurtleff, the flagpole case. I don’t think that the originalist has to then backpedal and say, “Starting from scratch, if I were designing First Amendment doctrine as I see it,” I think you can just take it as you find it.
(25:10)
So I wouldn’t say that if just the general question is where are tiers of scrutiny going? I would say, I think they’re here to stay for the foreseeable future, unless something that I can’t anticipate would happen. I think a different question is what about in different areas of the law, like the Second Amendment where we don’t have that precedent yet?
Kevin C. Walsh (25:35):
That makes a lot of sense. And so maybe in recognizing that a lot of these cases and issues will come before the court, it might make sense to dial back out to the more general question about who is bound by Supreme Court precedent and in different ways. So you alluded to the piece that you wrote on congressional originalism, and this had really a couple of components. One was to say, “Actually there can be reasons why taking an oath to support the constitution is consistent with Congress legislating on the basis of even Supreme Court precedent that they think is incorrect.” That is, so they can have reasons to do that. But the other side is that sometimes when you take an oath to the Constitution, you’re not necessarily taking an oath to every single volume of the US reports, and that there’s a way to understand one’s fidelity to the Constitution that is different from every single Supreme Court opinion.
(26:39)
And I’m wondering on that, is that an issue that maybe the view looks different from the bench? Because I think as an academic it’s possible to say, “Okay, everyone can sort out in their own way in understanding that there are rules about fidelity to the Constitution.” And that doesn’t mean everything the Supreme Court says. Now that you’re on the court, does it still look that way? Can we have fidelity to the Constitution without fidelity to every Supreme Court opinion?
Justice Barrett (27:16):
So it sounds like you might be asking like, “Now, are you there?” You kind of like, “Ha ha ha.”
Kevin C. Walsh (27:23):
That’s the follow-up question. So here’s where it’s coming from. Actually, a question from a student. We were talking about judicial supremacy. And so judicial supremacy is the idea that the Supreme Court means for everybody what it means as declared by the court in the course of resolving a case. So the student said, “Aren’t they all judicial supremacists?” If you’re on the Supreme Court, this seems like a very attractive power to have. On the other hand, there’s cases like the city of Boerne versus Flores case where, as a doctrinal matter, the Supreme Court embeds that into another doctrinal test. And yeah, it is kind of a, does judicial supremacy look different from the Supreme Court?
Justice Barrett (28:19):
Let’s see. The very idea that being in an office would encourage you to take or pull you in the direction of taking a maximalist view of your power, then every president would have subscribed to the unitary executive theory. So the unitary executive theory would say that all executive power is vested in the president. And so the president has to have pretty strong, I would say absolute, but very hefty control over all executive officials and that independent agencies would not be okay under strong view of that. And not all presidents do. Many presidents are fine having a more ambiguous shape of executive power, say.
(29:11)
No, and I don’t think for me. So I think when you come to an office, like when I came to the court I thought about these questions of judicial supremacy, and I’m sure that’s true for presidents who take office. I’ve thought about them and my ideas about them have not fundamentally changed. I think judicial supremacy within the judicial branch, the Supreme Court supremacy is important. So I think to run a railroad, you have to have order. And so I think the idea of vertical stare decisis where lower federal courts have to obey Supreme Court precedent, I think that makes sense. You can say there’s a constitutional basis for it in Article Three itself because it distinguishes between Supreme and inferior courts, that it’s kind of built into the whole idea of appellate review.
(30:04)
But when you’re talking about outside of the judicial branch, which is where debates about judicial supremacy focus, no, I don’t think that there can be an absolute take on judicial supremacy. And I think just to be clear that you know what we’re talking about, that we’re using the terms the same, there’s a distinction between Supreme Court or judicial judgments generally, the judgment and the opinion. And I’m bringing this up because this is a distinction that’s very important in the debates about judicial supremacy.
(30:45)
So I don’t think there is grounds to say that another branch of government could legitimately disregard a Supreme Court judgment, or a lower court judgment for that matter. I think there would be, I’m not going to say never in an absolute way, but certainly the precedent of the court has taken that position that there’s something distinct between judgments and opinions, Plaut versus Spendthrift Farm. Judgments are different because they are the resolution of the case. The judgment is when the court says, “This is how much money Joe owes Jane. This is the injunction, this is what we’re forcing you to do as a result of the case.” That is the exercise of the judicial power itself. And if the judgment itself were ignored, that would undercut what the judicial power is.
(31:37)
And so that’s why the court, throughout its precedent, has been very clear about the respect that needs to be given judgments. An opinion is not the judgment, an opinion is the explanation for the judgment. It’s the statement of reasons. And that doesn’t have the same force as a judgment. And so the famous example of this is Lincoln referring to the Dred Scott opinion, and he said he would respect the judgment in that case, but he would not take the opinion as something that was politically binding. So he would not feel himself bound by the court’s opinion in Dred Scott, but he would respect and feel bound by the judgment in the case.
(32:25)
Now, I do have to give the little caveat that, ironically, Lincoln is also the only president who actually disregarded a judgment because in Ex parte Merryman, he disregarded Chief Justice Taney’s judgment saying that this Lincoln suspension of the writ of habeas corpus had been unconstitutional. But that said, Lincoln’s Dred Scott statement I think is a good summary of the right way to view the distinction between judgments and opinions.
Kevin C. Walsh (32:55):
And it seems that this distinction between judgments and opinions, it has consequences not simply for things like judicial supremacy, yay or nay, Lincoln’s view, or Andrew Jackson’s view or things. In your opinion for the court in Haaland versus Brackeen in Indian Child Welfare Act case, you wrote something that pretty much said, “There is a distinction between a judgment and opinion. And when you are analyzing redressability for standing purposes, it’s the judgment that matters, not the opinion.” So that when people are coming in and saying, “I need judicial redress for my injury,” we can’t look at the redress as really helpful legal statements. It has to be a judgment in the opinion. Sorry, it has to be a judgment, not the opinion.
Justice Barrett (33:45):
Yes. Because if a plaintiff is going to come… So standing is the doctrine that says that plaintiffs can’t just come into federal court and seek advisory opinions from the federal courts, that there actually has to be a dispute. There has to be what Article Three calls a case or controversy. So part of that requirement, that case or controversy requirement, is this notion that the court has to actually be able to do something to address your grievance, it has to be able to do something to resolve your controversy. And an opinion about what the law requires, an opinion about what the Constitution means or how a statute should be interpreted, that does not redress the controversy because the exercise of judicial power, as I said a moment ago, is actually the issuance of the judgment. That’s what settles the dispute between the parties.
(34:35)
In the case that Professor Walsh is referring to, it was a case in which the federal court couldn’t really do anything for the plaintiffs because what they wanted was something that lay only in the power of the states to give them. But their argument was, “But the state court has already said that if the federal court comes out this way, that it will respect the federal court, and so then we’ll go back to the state court and then we’ll win.” But that’s not about the judgment, that’s not about the federal court being able to actually resolve the dispute and give the plaintiff what the plaintiff has asked for. That’s about the reasons, that’s about the persuasiveness. That could be like a law review article that I write.
Kevin C. Walsh (35:22):
In that opinion too, Justice Scalia always, he told his clerks, “Don’t cite my concurrences in opinions for the court because I wrote a concurrence that doesn’t necessarily mean.” But if you’re on the Supreme Court, you can quote a concurrence. The portion of his opinion was redressability requires the court to be able to afford relief through the exercise of its power, by which he meant the judicial power. Not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise.
(35:55)
That opens up a question then about the nature of the judicial power in some of these other cases. So for example, severability questions have come up in a lot of different ways, and this is what happens to a statute, the rest of a statute that is not unconstitutional. You have a part that is unconstitutional, what happens. Though it seems that on the court there is some pretty fundamental discussion about what judicial review is as it relates, for example, to severability. So in a case called Arthrex, which you didn’t write, but the Chief Justice Roberts wrote the opinion for the court, he described the judicial power in that case, not as the… Or he described what they were doing. Not as severing the law, but as disregarding that which was unconstitutional.
(36:53)
The debate here is when the Supreme Court says that a part of the law is unconstitutional, are they invalidating it? Are they doing something to the law? Or are they saying, “We’re not going to see that law, we’re going to disregard it because the superior of the law constitution controls”? So is judicial review best understood as invalidating or as disregarding when it comes to the unconstitutional part?
Justice Barrett (37:24):
I think it’s better understood as disregarding and not invalidating. When we speak colloquially, we might say something like, “The Supreme Court struck down this particular statute,” and that conjures up an image of the Court taking a pen and striking, striking through the United States code like, “We’re going to edit this out.” But the court doesn’t have that power. I don’t have a blue pencil or a red pencil, depending on whether you were striking out or just editing out a part of it. You’re disregarding.
(38:00)
And I think actually the way to think about that is as a matter of the judicial power, because the judicial power that the Supreme Court exercises is the same judicial power that district courts exercise. So we all have the same power that’s vested by virtue of Article Three. And think about when a district court, for example, so let’s say the district court in the District of Columbia, let’s say that that district court holds unconstitutional a statute. Then let’s say the Northern District of Illinois, a district court comes out another way. If you really understood the power as the power to strike out, how could you understand that to be that it’s struck out just in one jurisdiction but not another?
(38:50)
I think that leap that blurs the lines is made when you think about it from the point of view of the Supreme Court. But when you think about it as a power that every federal court has, when it exercises judicial review, it really clarifies that. And again, it goes back to the nature of the judicial power because a judgment… So I’ve said that a judgment really lies at the heart of the judicial power. A judgment only binds the parties to the case. So if Professor Walsh and I go to court, and I’m the plaintiff and he’s the defendant, and then let’s say that President Kilpatrick comes along, he can’t be bound, even if his case is on the exact same facts, he can’t be bound to the judgment. Now stare decisis and the persuasiveness of the opinion will certainly have an effect on him. But that is a distinction between what we would call in the law preclusion and what we would call precedent. And so I think you have to keep the two distinct.
(39:53)
And I think the reason why opinions have this effect that makes it look like we’ve struck out a law is because of precedent, because other courts that will hear that case. If the Supreme Court is the one that has held portions of a statute unconstitutional, they will follow what the Supreme Court has done. But that doesn’t mean that it’s no longer in the code. It would be weird too, if the court reversed itself later. Then what happens? Does it do CPR on the portion of the code that it had killed before?
Kevin C. Walsh (40:29):
Un-invalidating. Yeah, that makes a lot of sense. And so it seems like in understanding the judicial power, there’s the power of judgment and the remedies that are issued, do this or do that, injunctions or something, and there’s stare decisis, and each of those have different binding features of giving rise.
(40:50)
So what about another Supreme Court special, something that if a district court judge issues a judgment, that’s one thing, but they would not necessarily issue a concurring opinion, or for something. So there are certain writings, even if the writings are not themselves law the same way that the law being interpreted is the law. But sometimes Supreme Court justices will write concurring opinions, ones that are not for the court, that are not… They’re not precedential. How do you think about when to do that? Because it’s giving yourself more homework and so you have to want to for some reason. How do you think about concurring opinions?
Justice Barrett (41:38):
I will say this with the caveat that I’ve been at this for three years, and so surely my views may well change over time. The way that I think about it right now is I would say that I have what I might think of as an institutionalist perspective on opinions. And if I’m in the majority, my presumption is that the court’s opinion speaks for the court. When the court, in its early days, justices wrote seriatim opinions, which meant that there was no opinion for the court, but each justice individually wrote an opinion setting forth his, they all were men then, his own reasoning. And Chief Justice John Marshall was the one who instituted the practice of having an opinion for the court. So I think it’s important to have an opinion for the court. Everybody has their own philosophies, personally, if I ask myself the question, is this the function of a seriatim opinion where I feel like I just need to say my piece? I would not be inclined to do it.
(42:45)
To this point, the guideline that I’ve kind of used for myself is, if I have something that I really think I need to add that might help the development of the law, or if there’s an explanation that I feel like I owe. So I can give examples of both. We talked a little bit about Bruen and Samia. I think these questions, what I said in my concurrence in Bruen is I think they’re these hard questions about when you’re talking about the Bill of Rights and you’re talking about it applying into the states, when is the relevant period? Is it 1789? Or are you looking… Yeah, yeah, exactly. I think that there are these difficult questions about tradition.
(43:30)
When I was a law professor and I was doing some work on the meaning of the judicial power, it’s difficult even to say what’s the cutoff point? If you’re trying to figure out what the original meaning is, it’s not 1787 and then it dies. Because language, you’re looking at the meaning of words, and these words and how they were using these words, you need to expand the pool of evidence because they were still using the words and talking that talk. But it can’t go on forever. It can’t be like, “Oh sure, 1910.” But figuring out precisely what the relevant date is is tricky. What is the role of tradition? So I wrote the concurrence and Bruen and then emphasized again in Samia because I want law professors and lawyers to be thinking about those questions because then that will help the court because the court will surely be confronting those questions. So that’s flagging something for the law to develop.
(44:34)
And Samia, I should say too, anytime that I concur, anytime that I don’t join a part of an opinion, I feel like I owe an explanation why. And so really in Samia, I think that was the largest part of it. I will also write if I feel like it would be valuable to lower courts to understand the limits of an opinion or what an opinion is doing. I did that last term in a case called Talevski. And in the major questions doctrine case, in the student loans case, the reason why I wrote that, I had been thinking about that for a long time, actually. I had started a draft in West Virginia last year, but I decided not, it wasn’t the right time. I just wanted to think about it more and see how the law was developing.
(45:18)
And I said in this concurrence, this was about the major questions doctrine, and whether it is consistent with textualism or not, and statutory interpretation. And the major questions doctrine, just to be very brief, is a doctrine that says that if an agency claims a power that is major, asserts the authority to resolve a major question, that courts should look for some clarity, some statement in the statute that indicates that Congress clearly wanted to give that authority. There’s a very serious argument that that principle, if it functions as a substantive canon, in other words, something that would push the law in a direction other than its most natural, ordinary meaning, that it’s inconsistent with textualism. And I think that’s a [inaudible 00:46:08] that needed to be answered. And so that’s why I wrote that concurrence.
Kevin C. Walsh (46:14):
Why does a charge like that need to be answered? So sometimes I think Justice Scalia would say, “I write a concurring opinion to keep me honest, if I have broader commitment.” So is the idea that if the major questions doctrine is misunderstood in the way you were saying, avoid misunderstanding it that way, it would look like you’re voting inconsistently with a broader commitment that you have to statutory interpretation as textualism. So the explanation is, actually this is consistent with textualism. Is that the-
Justice Barrett (46:53):
So I think there are two reasons. I think I have two reasons for writing that concurrence. I think one is, yes, what you said. I do think if the major questions doctrine is understood that way, it would be inconsistent with my theory of statutory interpretation, which I have said is my theory of statutory interpretation. And so I felt the need to answer that and explain why I was still joining an opinion, applying the major questions doctrine, including the portion. I could have… I said in the concurrence that I didn’t think the major questions doctrine discussion was actually necessary to the opinion, but I still joined it. So I felt like I needed to give an explanation for why I joined it.
(47:34)
I also think that the doctrine is… Not everybody sees the doctrine the way that I do, and I think the doctrine is at a critical juncture. And so saying how I see it, I don’t think that the court has actually adopted yet either the substantive canon view or my more like this is just how people speak view. And so I think it’s an opportunity to say, “This is what I think the right understanding of the doctrine is.” And in a concurrence, you can say things. I actually don’t know whether the Chief agrees with me or not, but let’s assume that he did. Everything that I said in my concurrence would be pretty difficult to say in a majority opinion because it was much more theoretical in the way that a concurrence can be, that fits less well in a majority.
Kevin C. Walsh (48:22):
That makes a lot of sense. I have a question about the opposite choice. You’re on a multi-member court, you’ve described yourself as having an institutionalist approach to its past decisions. The way these opinions get written is there’s votes and then someone has the pen for the opinion for the court in some ways. And then opinions come around. And maybe there’s memos, maybe there’s some suggestions. And some of the suggestions would be the nature of pure suggestions. The kind clerk might cringe and be like, “How did we leave a typo in?” Or something. Or it might just be this word choice or something. There’s those kinds.
(49:09)
But then there’s others which is, “I wonder if you might consider adding in something like this or something like that.” And those suggestions are sometimes taken and sometimes not. Are there occasions then when you would join an opinion that maybe your best suggestions weren’t taken, but you don’t need to explain your own view, but it’s about right. How do you think about joining an opinion that is about right and not writing something else? How is it consistent with the judicial oath as opposed, to put a harder point on it?
Justice Barrett (49:54):
Let’s see. So I think if you look closely at Supreme Court opinions that cite legislative history, you will see the following trend that post-dated Justice Scalia’s vigilant refusal to ever join anything that’s cited legislative history, which I’ll just give the caveat. And since we’re at a Catholic school, I will assume that some of you in the audience will get this reference. I think Justice Scalia drew a very hard line on legislative history in the nature of avoiding the near occasion of sin. I don’t think he actually thought, and he later in his career said he thinks that there are sometimes in which you can rely on legislative history and it has legitimate uses. But I think that the court had gone so far to the other side, it was like the recovering alcoholic going into a bar. He just felt like, “Let’s just not sight it at all.”
(50:46)
So I don’t have the view that I would never join an opinion that cited legislative history. And I do think there are some legitimate uses for legislative history. That said, sometimes the court will use legislative history or cite legislative history as persuasive evidence of what Congress thought, say. Occasionally, much, much less than it used to be in the old days, but the court will sometimes do it. If you look closely at the way the opinions are written now, it’ll usually say something like, “For those who find legislative history helpful,” and that is how everyone can sign on, even if they don’t find legislative history helpful, because it’s not misrepresenting your view.
(51:29)
And so sometimes an opinion might circulate and that language is missing and someone will say, “Would you consider adding this?” And then the person says, “Of course, and then you can join.” So I have, and some of my [inaudible 00:51:43] are here, and so they will recognize this. When it comes to suggestions though, you said some are pure suggestions or some are… My policy is author’s choice on a lot of things. I don’t ask for a lot of suggestions. I ask for suggestions if I think things are wrong, if I think things that I couldn’t sign on to them, and I will ask for changes if I think that something is likely to cause confusion. But I don’t ask for changes otherwise.
(52:14)
Sometimes my law clerks will be disappointed or say like, “They could have discussed this or they could have done that, the argument could be stronger.” But a lot of those things are left to the discretion of the author. And so if it’s not wrong and I think it’s not going to cause confusion, and I can say, “Okay, this represents… It’s maybe not the way that I would’ve written it, but it represents an accurate statement of the law,” I will sign it. I’ll sign on.
Kevin C. Walsh (52:47):
That makes sense too. Now that you’ve mentioned your occasions of sin, I think it might be-
Justice Barrett (52:54):
Where are you going with that, Kevin?
Kevin C. Walsh (52:57):
Here we go. So actually I do think as we’re approaching an hour, and I do want to make sure, having started with constitutional originalism, that we talk about the Catholic intellectual tradition as well. And the university’s motto is Deus lux mea est, God is my light. And that’s something that we take seriously throughout the university, including at the Columbus School of Law. It seems that one of the main overlaps between the two aspects of our project on constitutional originalism and the Catholic intellectual tradition is the natural law, which has been described by some as a light that binds in a way, God’s imprinting who we are and what makes us flourish. I wonder, as a former student at a Catholic law school, as a former professor at a Catholic law school, as a lawyer, and now as a sitting jurist, what can we at Catholic law schools, what can and should we be doing from within the Catholic intellectual tradition to help form future lawyers and jurists?
Justice Barrett (54:12):
Let’s see. We used to say, so the topic of what it means to be a Catholic law school, just like what it means to be a Catholic university, is one that we as a faculty talked about a lot at Notre Dame, and I’m sure the faculty is continuing to have that conversation. One thing that we used to say a lot and that I do think is true is that being at a Catholic school is broadening. It broadens the number of topics that are permissible and the areas of inquiry rather than narrowing them because there’s nothing off the table.
(54:49)
I don’t think it’s any accident that the work that is being done primarily, it’s not that it’s exclusive to say to you and Joel, or Jeff, but I think it’s not an accident that my friend and former colleague Jeff Pojanowski at Notre Dame has been writing about justifications, natural law justifications for originalism, has done work with you on that. Joel has as well. And I don’t think it’s an accident that it’s you working at Catholic law schools have a platform for that. It’s not verboten to think about Thomas Aquinas, to think about that aspect of the jurisprudential tradition. And natural law, if you just look… Notre Dame still requires jurisprudence. Do you require it?
Kevin C. Walsh (55:36):
Not presently. Should we?
Justice Barrett (55:39):
Sorry, law students. Notre Dame requires jurisprudence. I did not teach jurisprudence. But Aquinas in the natural law tradition is part of just the regular jurisprudence book. It’s not just a Catholic thing. However, I think it feels more natural to talk about it perhaps, or maybe Aquinas feels less intimidating if you are talking about it from the Catholic intellectual tradition. And so I think that really opens up the possibility of being able to talk about it. I also think people don’t have to be afraid. We’re used to, in universities, having academic freedom and having all viewpoints on the table. And I think at a Catholic school, you can feel particularly comfortable about bringing your religious or moral points of view to the table. That’s okay. In the classroom, that’s okay. In colloquia, faculty colloquia, that’s part of the conversation. And so I think that aspect of it really opens up more lines of inquiry than narrows or shuts them down because it invites very explicitly another perspective to the table and one that has very ancient roots.
Kevin C. Walsh (56:50):
I think within the law school curriculum, another class perhaps that there’s an opening to considerations, of just how do I live my whole life as a lawyer, as a human person, as a pilgrim? Just my life as a whole, I guess is in the professional responsibility class, there can be some overlap, where you think about what are my obligations as a lawyer? Or you think about judicial ethics, or things like that. And along those lines, I’m reminded on this life as a whole idea, is something that Justice Scalia said. I don’t know if he said it to you. He said it to lots of people. The version that he said to me, he said, “Kevin, you must never forget that children are civilized at the dinner table.” And this is one of those sayings, I say, “I haven’t forgotten it. What does it mean?”
(57:41)
It means something like, maintain your perspective. Children are important, and your life is more than your job. He would say, “I went to Cleveland and worked for Jones Day, and that was very good. It was good for my family. It was good for me. As a lawyer, you have to navigate your career, but more your life.” And I wonder, you’ve advised a lot of law students, you advise your law clerks about things beyond just, “Here’s what goes in the memos we send to other chambers.” Are there rules of thumb or guides for navigation that you find yourself sharing with young lawyers or really with all of us as we navigate as our professional path and our life path?
Justice Barrett (58:37):
So one thing I’ve said, and this is something I’ve repeated from advice that my father has given me when I’ve had law students or law clerks ask me for advice about making career choices. But this is actually advice I think that applies even outside of that context, is never make a decision based exclusively on money. I think money’s always a factor. You have to put food on the table, you have to house yourself. If you have children, you have to be able to provide for children. I don’t want to be here to be saying that money is irrelevant. Of course it’s not. But it’s one factor to be considered.
(59:11)
And I think that it is a mistake to ever make a decision that’s driven only by money. So when you’re thinking about a decision, say a career choice, and you have your pro con column and you find yourself saying that the only advantage to this job is that it has more money on the table, that’s probably not a good reason to take it. And conversely, if you’ve got your pro con column and the only con to another job is that you’d be making less money, that’s not a reason not to take it. But I think my husband and I use that principle in making all kinds of expenditures, that we try not to let money be the sole criteria. And I have found that to be good advice for my own life. And so it’s something that I’ve shared with students along the way.
Kevin C. Walsh (01:00:00):
I went to a Salesian High School and the Salesian Method was reason, religion and kindness, and I often thought they should add, and food. It works with students, it works for all of us. We do have a reception outside to which everyone is invited. And as we end this hour, I just ask that you all join me in thanking Justice Barrett for this [inaudible 01:00:26].