Amy Coney Barrett’s Message for America

When Amy Coney Barrett was appointed to the Supreme Court, she was in some ways an unlikely choice. She was living in South Bend, Indiana, not New York or D.C. She went to Notre Dame Law School, making her the only justice that didn’t go to Harvard or Yale. She’s the mother of seven kids. And, at the time of her appointment, she’d largely spent her career as a professor, with just under three years on a federal appeals court.

To put it bluntly, Amy Coney Barrett was an outsider.

But people close to President Donald Trump saw something: She was an originalist. A former clerk for Antonin Scalia. A devout Catholic with real intellectual bona fides. And a rising star in the conservative legal movement. In short, she was the ideal jurist to replace the late Ruth Bader Ginsburg.

After her 2020 nomination, the left called her inexperienced and a religious zealot. They said her confirmation hearing was rushed, and that she would undermine trust in the Supreme Court.

But with a 52–48 vote, just six weeks before the 2020 presidential election, Barrett was confirmed—without one Democratic vote. She took her seat at the highest court at just 48 years old, and became only the fifth woman to ever serve on the Supreme Court.

Considering how our nation’s most powerful people stick around into their 80s, she’ll likely have a major impact on American law and life for decades to come.

We’re now five years into her time on the bench. And in a turn of events, CNN ran a piece last year titled “The Last Best Hope for Supreme Court Liberals: Amy Coney Barrett.” Newsweek ran “Amy Coney Barrett Is Liberal Justices’ ‘Best Chance’: SCOTUS Analyst ” and The New York Times ran “How Amy Coney Barrett Is Confounding the Right and the Left.”

How did we get from “dangerous, religious zealot” to “last best hope”?

On one hand, Barrett has done what one would expect of a Republican appointee: voting to overrule Roe v. Wade; voting to outlaw affirmative action; and voting against the administrative state.

At the same time, she has voted with liberal justices in some of the most pivotal cases—and in Trump-related cases, she is the member of the conservative supermajority who has sided in Trump’s favor the least.

In short, Barrett surprises. She just wrote a new book called Listening to the Law: Reflections on the Court and Constitution, where she makes the simple but salient points: Her job is not to like all of her decisions, nor is it to please the media or a president. It’s to follow the text of the Constitution, full stop.

On Thursday night I sat down for a rare conversation with Justice Barrett at Lincoln Center’s Alice Tully Hall in New York City.

I also ask her about key cases like Dobbs v. Jackson Women’s Health Organization, the birthright citizenship case, nationwide injunctions, the shadow docket, transgender minors getting medical treatment, her willingness to dissent with liberal justices, her response to people who call her an “evil DEI hire,” and so much more.

You can scroll down to read a few highlights from our conversation, and listen to our conversation here:

On whether we’re in a constitutional crisis:

Bari Weiss: As American citizens, how will we know if we’re in a constitutional crisis? What would that look like? Because honestly, if you’re just a busy person going about your day and you see a lot of headlines that we’re in a constitutional crisis, it’s like, okay, how will we know that?

Amy Coney Barrett: I think the Constitution is alive and well. I don’t know what a constitutional crisis would look like. I don’t think that we are currently in a constitutional crisis, however. I think that our country remains committed to the rule of law. I think we have functioning courts. I think a constitutional crisis would clearly be one in which the rule of law crumbled.

But that is not the place where we are. And it is plainly true that right now we’re in a time of passionate disagreement in America. But we have been in times of passionate disagreement before. I mean, if you look at the 20th century and you think about campus unrest during the Vietnam War, and you think about the Great Depression, and then if you go back a little farther and think about the Civil War . . . You think about the ’50s, and you think about the Civil Rights Movement.

We’ve had times in this country where we have been bitterly divided and we have come out stronger for it.

On “rogue judges”:

BW: In March, Laura Ingraham asked the president if he would defy a court order going forward. And this is what he said: “No, you can’t do that. However, we have bad judges. We have very bad judges, and these are judges that shouldn’t be allowed. I think at a certain point you have to look at, what do you do when you have a rogue judge?” Has an American president ever spoken like that about the judicial system in this country?

ACB: Conflicts between the president and the judiciary are not new. They existed between Andrew Jackson and the Supreme Court. Even Abraham Lincoln, there was some conflict. There was conflict between FDR and the Supreme Court. So I think that when we talk about the separation of powers and the balance of power and there being a tug and a pull between the branches of government, this is a dance that we’ve seen before.

On the leak that shook the Court:

BW: One of the things that was so shocking about the Dobbs decision was the leak ahead of the decision. There was an investigation into it. The leaker was never found. But the reason it was so shocking, of course, is that this is the Supreme Court. This is supposed to be the most high-trust, high-integrity place.

I know you can’t speak to the internal discussions that you’ve had, but characterize how the leak impacted the workings of the court.

ACB: The leak was a huge breach of trust. It was shocking. The court is pretty small. I mean, it’s the smallest branch of government. And not just because there are only nine justices. Just the number of employees within the court is so much smaller than in the executive branch or Congress.

It’s a very tight ship, a small operation, you know, and we call ourselves, inside the court, family. And that encompasses all the employees. The court operates in an atmosphere of trust. And so, of course, the leak did breach that trust. I personally have worked hard not to let it change or make me paranoid, change the way that I relate, because I think one of the beautiful things about the way that the court operates is the trust that we have.

But, you know, you’re looking over your shoulder. We were not able to identify the person who leaked the draft, but we have taken measures to change safety procedures to try to improve security, and we haven’t had something like that happen again.

On left, right, and black robes:

BW: Given your independence on the bench, there have been a flurry of stories in recent months saying two things broadly: One, you’re the most interesting justice on the bench. And two, that you are drifting left. And there was recently this big piece in the Times showing this very scientific-looking chart proving as much. Are you the most interesting justice on the bench? And if not, who is? And are you drifting left?

ACB: All right. Passing on the first question.

BW: You’re recusing yourself.

ACB: I’m recusing myself from the first question. On the second question, I don’t think in those categories. And I think it would be actually inconsistent with my job to think in those categories of left and right. In the courts, judges wear black robes because we are not partisan, we’re not wearing red and blue robes. We don’t sit on the bench on the left and on the right. It’s not like Congress, where everybody is on one side or another. You’re sitting in order of seniority. Thinking in those categories of left and right is just the wrong way to think about the law. So I don’t think about the law that way.

BW: Scalia said that the press is never going to understand the law.

ACB: You seem to understand the law pretty well.

BW: I mean, I studied hard for this. But why do you think he said that? And you agree with that generally?

ACB: I think he said that because of what we were talking about a minute ago. Just the press. And this isn’t a criticism of the press because I think this is how Americans live, and operate in the current moment, in the current news cycle, with a focus on what’s happening now. But the court operates at a place that’s rooted in history and has a longer view.

And I’ll give you an example of what I mean, that kind of circles back to your questions about nationwide injunctions and what's happened. With respect to President Trump’s executive orders, the court has to take these cases and think about them in terms of the presidency, not President Trump. And I think the media—and I think all Americans watching it, watching these cases unfold—is thinking about it in the context of the current occupant of the office.

But one thing that the court has to do for these cases, and for all, is to imagine that it was President Biden, President Bush, you know, President yet-to-be 50 years from now, because the answer has to be the same. But I think when you are in a business that is operating within a news cycle and you’re thinking about outcomes and you’re thinking about the way that things work in other branches of government, where it’s all decided by politics, you assume that the court is operating in that same time frame and with those same political considerations.

So one reason that I wrote the book was to show how the court operates, and that it is not that way.