October 13, 2020
Video of the exchange is available here or by clicking the image above.
U.S. Senator Ben Sasse, a member of the Senate Judiciary Committee, asked Judge Barrett, a former law professor at the University of Notre Dame, to give a plainspoken explanation of her originalist judicial philosophy, the nature of law, and the role of the courts.
Full text of the exchange is available below.
Senator Ben Sasse: Thank you, Mr. Chairman. Judge, welcome back. I mean this as good news, but it might not feel like it. After me, you’re half done for today. I’m eleventh of twenty-two.
Mr. Chairman, before I begin my questioning, I’d like to ask unanimous consent to admit into the record a letter from Allen Guelzo, the historian at Princeton, who has written a letter to the Committee in response to some of Senator Harris’ claims about the history of Supreme Court vacancies going back to the Civil War.
Senator Graham: Without objection.
Sasse: Thank you. Judge, you have said that the meaning of law doesn’t change with time, and you’ve said that’s very important. Can you unpack for us why it’s so important that the meaning of a law doesn’t change with time?
Judge Amy Coney Barrett: Sure, because the law stays the same until it is lawfully changed. And if we’re talking about a law that has been enacted by the people’s representatives or gone through the process of Constitutional Amendment or Constitutional ratification, it must go through the lawfully prescribed process before it’s changed. So, Article V in the context of the Constitution, or bicameralism and presentment in the context of statutes, and it’s not up to judges to short-circuit that process by updating the law. That’s your job.
Sasse: But laws clearly are written in a context and then the things, the circumstances to which those laws have applied would change. Does the Fourth Amendment have nothing to say about cell phones? Unreasonable search and seizure was obviously not written at a time when they imagined mobile technological devices that addicted our kids. Does the Fourth Amendment have nothing to say about cell phones?
Barrett: No, the Fourth Amendment... so, the Constitution, one reason why it’s the longest-lasting written Constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that when you’re talking about the constable banging at your door banging at your door in 1791 as a search or seizure, now we can apply it as the court did in Carpenter v. United States to cell phones. So, the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalog the instances in which an unreasonable search and seizure could take place. So, you take that principle, and then you apply it to modern technology like cell phones, or, you know... what if technological advances enable someone with superman x-ray vision to simply see in your house? So, there’s no need to knock on the door and go in. Well, I think that could still be analyzed under the Fourth Amendment.
Sasse: So, I think this is a useful place to explain to the American people, again, what originalism is and why it’s a mistake to view it as a Republican position. I think that originalism is a part of a jurisprudential debate. It’s not a part of a policy continuum between Republicans and Democrats. I think it’s something that’s useful for everybody who believes that three branches of government have two that are political and one that is not. So, maybe it’s useful to just kind of back up and say when you define yourself as an originalist, what does that mean? And then, how is it going to relate to that distinction between the principles that are timeless but the applications that are clearly going to change by circumstance.
Barrett: Right, so originalism means that you treat the Constitution as law because it commits these texts to writing. And in interpreting that law, you interpret it in accord with the meaning that people would have understood it to have at the time that it was ratified. And the reason that you do that is because, otherwise, well as I said, the law stays the same until it’s lawfully changed. Otherwise, judges would be in the Constitutional convention business of updating the law rather than allowing the people to take control of that. Now, in the case of the Constitution, as I said with the Fourth Amendment, many of its principles are more general. Unreasonable searches and seizures, you know, free speech. Those are things that have to be identified or fleshed out or applied over time, so the fact that there wasn’t the internet or computers or blogs in 1791 doesn’t mean that the First Amendment’s Free Speech Clause couldn’t apply to those things now. It enshrines a principle, and we understand the principle as it was at the time. But then, it’s capable of being applied to new circumstances.
Sasse: So, when you define yourself as an originalist, what are the other schools of thought that are adjacent to it, and how do you think about the debates among those with other people that are now with you on the Seventh Circuit, for instance?
Barrett: Sure. Well, Senator Sasse, I think one thing that it’s worth pointing out is that in the academy, in any event where I’ve spent a large portion of my career, originalism is not necessarily a conservative idea. There is a whole school of thought, and so originalists are now a very diverse lot, and there is a school of originalism that’s more of a progressive originalism and is very committed to keeping the Constitution’s meaning, just interpreting text the way all originalists do to say that it was, has the meaning that it had at the time that it was ratified, but they tend to read it at a higher level of generality. So, all originalists don’t necessarily agree, and in fact, there’s an advocacy group called the Constitution Accountability Center, which has routinely filed briefs in the Supreme Court, that calls itself - it writes briefs in support of originalism but taking it from a more progressive standpoint. So, I don’t think it’s - probably people think, ‘oh it’s only people who are conservatives who are originalists,’ but actually it’s a more widely accepted view than that. I think that if you think about different strains of approaching Constitutional text, originalism is one. All judges and justices take account of history and the original meaning, it’s just that some weight it differently, whereas originalists would give it dispositive weight when it’s discernible. Other approaches to Constitutional interpretation may take a more pragmatic view and say in some instances, ‘well, that may have been the historical meaning, but that’s an uncomfortable fit for current circumstances, so we will tweak it a little bit to adjust it to fit these circumstances, that situations. Sometimes it’s called living constitutionalism, that the Constitution can evolve and change over time. Sometimes it’s called a more pragmatic Constitutionalism.
Sasse: I want to be sure we establish this fact clearly together, because one of the things that I think is really unhelpful for the American people when they see hearings like this over the last 20 years is there is an assumption that those of us who have advocated for you over the course of the last three years must be doing it because we know something about your policy views, and we’ve seen the beautiful mind conspiracy theory charts, for instance, that this is about specific outcomes that people want. What I want is to have a judge who doesn’t want to take away the job of a legislature that’s accountable to the people. What I want is to be sure that the two political branches that are accountable to the people because they can hire and fire us are the places where policy decisions are made. So, what you’re saying is in the legal academy, there are people who agree with you on originalism as a broad philosophical school, and yet would come out very different places on the outcomes of particular policy decisions?
Barrett: That is what I’m saying.
Sasse: So, on the Notre Dame law faculty when you were up for the vacancy on the 7th Circuit 3 years ago, the Notre Dame Law Faculty as I understand, the letter that we got from them here, had people unanimously recommend you across a faculty, and I would assume there is a pretty wide view on policy on the Notre Dame Law faculty?
Barrett: There is.
Sasse: And so, people can affirm that you know what the job of a judge is. You have the judicial temperament, and modesty, and humility about the calling, and they’re comfortable with you, even though they don’t think they might agree with every single policy view you might have before you put on your robe.
Barrett: I hope that is what people think of me, because that is what I have always striven to do, and certainly in my time as a judge, my boss is the rule of law, not imposing my policy preferences.
Sasse: So, can you tell us what the black robe is about? Why do judges in our system wear robes?
Barrett: Well, judges in our system wear black robes, and they started wearing black robes, actually, because Chief Justice John Marshall started the practice. In the beginning, justices used to wear colorful robes that identified them with the schools that they had graduated from, and John Marshall decided to wear a simple, black robe. Pretty soon the other justices followed suit, and now all judges do it. I think the black robe shows that justice is blind. We all dress the same. It shows that once we put it on, we are standing united, symbolically, speaking in the name of the law, not speaking for ourselves as individuals.
Sasse: Thank you. In your questioning from Chairman Graham this morning, you talked a little about the process of judicial decision making, and you started with four steps and then added a fifth and then I think added a sixth, because it turns out that being a reactive branch is really reactive. Can you explain what it means that the Judiciary, the Article III branch, is reactive?
Barrett: So, Article III of the Constitution says that courts can hear cases or controversies. So, a judge can’t just walk in one day and say “I feel like visiting the question of healthcare and telling people what I think”. We can’t even think about the law or how it would apply until litigants bring a real live case with real live parties and a real live dispute before us. The material that we have to decide that dispute is what comes from you. It is the statutes that you pass. We don’t get to come up with the policies and see our wishes become part of the United States code. We react to the litigants who bring cases before us, and we apply the laws that you make.
Sasse: What are the steps inside those Article III courts before it would ever get to a situation where the Supreme Court hears cases? What is unique about the Supreme Court?
Barrett: So, the Supreme Court obviously sits atop the Federal hierarchy of the Judiciary. My court now, the Seventh Circuit, every time someone loses in the district courts, which are the trial courts, they can appeal, and we take every single appeal that comes. The Supreme Court works differently. The Supreme Court takes cases when it needs to, most frequently the reason it takes them is to resolve a division among the courts of appeals or the state supreme courts. The Supreme Court gets about 8,000 petitions a year and hear about 80 cases a year, so it is discretionary of what cases to take.
Sasse: So, it’s a reactive branch and is after a process where there is a statute, it’s been challenged, there are active cases, and then it works its way up to the Court. But, when the justices decline to take a case, what are they saying? Are they saying “you don’t matter and you don’t have a right to appeal”? What are they saying to a litigants in a case when they decline to grant?
Barrett: They are not expressing any view on the merits. They are simply saying that this isn’t a case we are going to put on our docket for certiorari because the Court has obviously limited time and limited resources, and so it selects the cases where it is resolving a division, for example, or some other question, of national importance on which the Supreme Court needs to step in.
Sasse: There has been a lot of discussion, in some of the questioning this morning, implicitly, about standing. Can you just explain what standing is so that the American people understand it?
Barrett: Yes. So, this dovetails with your question about the Judiciary being a reactive branch. As I said, the Constitution gives the federal courts the power only to decide actual live cases and controversies. So, not only can we wake up one morning and volunteer our views, because the Constitution prohibits us from giving what are called advisory opinions. We can’t just dispense advice or give our views on the law, which is one reason I am not able to answer some of the questions being asked today. A litigant can’t get us to give an advisory opinion or illicit a view, unless the litigant actually has a real case. You, Senator Sasse, couldn’t walk into court and file a lawsuit and just ask me to give my advice whether some particular statute was constitutional. I can only decide that question if there is an actual dispute about it.
Sasse: You mentioned living constitutionalism a little bit ago. I think Chief Justice Warren had a much broader view of standing than some of the folks that have influenced your thinking and writing. Can you walk us through a little bit of the history of the court’s view on standing over the past few decades?
Barrett: So, are you thinking about how broadly, like when a plaintiff has suffered an injury, or that’s a concrete injury?
Barrett: So, Senator Sasse, if you came into court and you were objecting to a particular statute, and you didn’t like a particular statute. You would actually have to suffer what is called a concrete injury. The Supreme Court a few terms ago in a case called Spokeo, said that a plaintiff lacks a concrete injury if the harm isn’t, let’s see, to use words that the American people might understand, palpable. Like it can’t just be a procedural injury, or something that didn’t actually have real consequences, a real effect on the litigant. I think that the dispute about standing or the difficult thing in deciding questions about standing or the Spokeo thing lays this out is deciding when an injury is concrete and the courts can hear it, or when an injury is abstract and designed to illicit an advisory opinion from the court.
Sasse: So, you said in your opening statement yesterday that it is not the responsibility of the courts to right every wrong in society. I’m going to ask you a question about it, but first can you just remind us what your view is there? Why did you say that?
Barrett: Um, so probably what I was getting at there, although I have to say, Senator Sasse, so much has happened since I gave the opening statement yesterday. Courts, because they are reactive, can’t reach out to right wrongs that don’t come to them in the situation of a case or controversy. And then, even if they come to courts in the situation of a case or controversy that a court can legitimately decide, we’re not free to just resolve it like Solomon in the way that we think is wisest. So, we are only free to address wrongs and decide cases in accordance with democratically elected law. So, the policy making is yours to do, and it is only if you have enacted policies that enable us to right a wrong that we can do so.
Sasse: So, you still said though that you view it as some of your responsibility on the Seventh Circuit to write every opinion, every judgement, from the standpoint of the losing party. Explain to us why you take that perspective of wanting the losing party to understand the law and the argument.
Barrett: So, I just write the opinion as I would write the opinion. And then after I write the opinion, I read it from the perspective of the losing party because I want to make sure that, like I said earlier, it’s a check on me to make sure that if I try to put my emotions or my preferences on the other side that I can see that it’s been a balance just strictly driven my legal analysis. I also want to make sure that the language in it is very respectful to the party that will ultimately be disappointed. I don’t know, is that responsive?
Sasse: Yeah, because why I want to ask this is because, I’m in my fifth year here, or a little over five years, and I’m on my fourth year on this committee. And pretty much you’re the third Supreme Court nominee to come before the committee during that time, and we’ve had dozens of appellate court nominees, and I’ve been amazed how many times the argument is: “American people are really, really scared. The person sitting before us obviously hates people and wants sick people to die and not have health care coverage."
That’s sort of an argument that’s routine around here. It’s been focus grouped, obviously, as a good way to demonize nominees to the Court and hopefully drive outcomes and elections, I guess. I don’t understand it. I think it’s terribly destructive of the civic health and yet I think about it from the standpoint of thoughtful, well-meaning Nebraska Democrats who hear that and they know I have a different policy view than they might on getting the portability in healthcare so people can keep their health insurance across job and geographic change because that’s actually what’s driving uninsurance in America over the last few decades. It’s not primarily health status. It’s not primarily pre-existing conditions or socioeconomics.
The number one driver of uninsurance in American public life is that we change jobs a lot more frequently than we used to. And so, I have a different policy solution of how we would get to portability in healthcare than a lot of my Democratic colleagues. But those are policy disputes about a modern economy where people move around a lot, both geographically and in terms of employer sponsored health insurance relationships.
Those contracts are not really the things that a nominee coming before the court is supposed to opine on because I don’t have any ideas what your views are on healthcare, but I know that it’s not really the job of a judge to reflect on those things.
And so, I want to be sure that folks who hear this hearing and at the end of the process they can have trust that you’re not a person who really wishes secretly you could be the queen of all healthcare and decide all these issues. And so, when you write your opinion it seems to me that one of the really humble things you’re doing is you’re saying “in every case that’s comes before me on the Seventh Circuit I want to write this opinion from the standpoint of the losing party to understand what was the question before the court today and how did the court rule on that specific, narrow thing,” because ultimately I think you would believe, given you’re jurisprudential tradition and given your view of judicial modesty and humility in your Scalia mentorship, my guess is there are times when you rule in cases where you go home at night and you take off your robe and you think the outcome is not the outcome you wish had been the case, but it wasn’t your job to ultimately decide all policy in American life. It was to decide the specific question before you. And it seems to me the humble, empathetic way you write those opinions is really important.
It’s also - it should be in the interest of public trust and American people who might listen to a lot of the demagoguery that implies that really, you’re just secretly a policy actor it should be pretty comforting to them that except for probably Justice Breyer, you’ve written more I think than anybody who’s currently on the Court. So, people can actually know your jurisprudential views and how you’re going to approach cases when you get on the Court because you’ve written a ton.
There’s a reason why the Notre Dame faculty, regardless of their policy positions, wrote a letter to this committee universally recommending you. There’s a reason why year after year on the Notre Dame Law faculty you were professor of the year, because students regardless of their policy views thought you were really good at explaining what the job of a judge is and the purpose of Article III in our Constitutional system is.
And as somebody who worries a lot about institutional trust and a lot of the attacks that we see on the Court, a lot of the attempts we see in this language about potentially court packing if we would go to 11 or 13 or 15 or a Venezuelan style 47-person court over the next couple of election cycles that undermining, that delegitimizing of the courts should have as its antidote the fact that you have written a ton about what you think the job of a judge is and people can actually understand it and I would hope that that’s some of what this hearing would try to unpack.
I am nearly out of time and I think the Chairman is going to take away my slot, so I want to ask one final thing. Tell us about the Scalia-Ginsburg friendship and the impact that it made on you.
Barrett: So, Justice Scalia famously when the vacancy came up - I think it was Justice White’s seat that Justice Ginsburg filled - but when the vacancy came open during the Clinton Administration, Justice Scalia recommended her even though they had been together on the D.C. Circuit and that’s where they got to know each other. And he knew that she had a different jurisprudence approach. And you know, a lot has been said in the weeks since Justice Ginsburg died about that friendship because I think it speaks so well to both of the characters that despite the fact that they had such great differences and they could fight with the pen when they were socializing, when they were outside of the opinion writing world, they had respect and affection for one another. And that’s how I’ve tried to live my life with - I have friends who disagree with me vehemently about all kinds of things but I think that it is dehumanizing if we reduce people to the political or policy differences that we might have with one another.
Sasse: Thank you and congrats on being half done.