- [Announcer] Funding for this program is provided by Panonica Foundation, Judy and Peter Blum Kovler Foundation, Ascension Seton, BP America, Laura and John Beckworth, St.

David's HealthCare.

And by.

And also by.

A complete list of funders is available at APTonline.org and LiveFromLBJ.org.

- You know, I've never heard voices raised in the conference room.

It's only the nine justices in the conference room when we make decisions, voices are not raised.

We go to lunch together, we shake hands before we go on the bench.

And I think instantiating some of those practices in our own life is one step forward.

(uplifting music) (uplifting music continues) (soft music) - Welcome to the LBJ Presidential Library.

(soft music continues) Since the library was dedicated over a half a century ago by our 36th president, Lyndon Baines Johnson, it has hosted some of the biggest names and best minds of our day to discuss our nation's rich history and the issues of our times.

Now we bring those conversations straight to you.

Justice Amy Coney Barrett has said, "The process of judging which happens behind closed doors can seem like a mystery."

But she adds, "It shouldn't."

In her recent book, "Listening to the Law," Justice Barrett aims to demystify what happens on the Supreme Court to which he was appointed by Donald Trump in 2020.

In this two-part interview with the justice conducted before a live audience at the LBJ Library, she discusses her appointment to the high court and offers insight into its inner workings and the collegial relationships that justices share despite their differences.

(audience clapping) (audience clapping continues) Well, welcome Justice.

- Thank you for having me.

- And congratulations on "Listening to the Law."

- Very happy to have it done.

(Mark chuckling) - I bet.

So I want to start with where you start in the book and where you end in the book, and that's with a photograph that is framed on your desk of your great-grandmother's house in which you have stood only one time when she no longer owned it.

What is the significance of that photograph and why did that house make such a deep impression on you?

- So about, I grew up in New Orleans and about 10 years ago, my siblings and I rented a party bus to celebrate my dad's 70th birthday.

He just turned 80, and my parents both grew up in New Orleans and they have lots of sites that are very meaningful to them, including my great-grandmother's house on Green Street in New Orleans.

And so that was on our tour.

I had never seen it before, but my great-grandmother was a widow.

She had 13 children.

She found out she was pregnant with the 13th after her husband's funeral.

So she had a difficult life.

This was during the depression, and I walked into the... The new owners of the house let us go in to see it.

And it was so small and I was so struck at the time, you know, Jesse and I have seven children.

Our youngest has down syndrome, so his special needs require extra care.

And I was feeling like my life was at a full expanse, like how could I possibly do everything that we had to do?

And I saw her house and I just felt... It was very significant to me because it felt like she was able to stretch herself beyond all reasonable capacity.

She took in relatives that needed a place to stay.

She fed homeless men who during the Great Depression where the hobos coming through the neighborhood off of her back porch.

So she just seemed to multiply very little into much.

And so I keep a picture, and since then I always have on my home office desk just to inspire me to try to keep making use of everything that I have.

- So you entered the court in 2020 as an appointee of President Trump in his first term in office.

But you had been in the court before.

You had clerked for Antonin Scalia in the 1998-1999 term that the legendary conservative justice appointed by Ronald Reagan.

So what did you learn from Antonin Scalia that prepared you for being a justice yourself?

- So Justice Scalia was entirely devoted to getting it right.

He was extremely smart, he's well known for being an excellent writer.

And so those legal skills, just the sharpness of his intellect and his analysis, you always had to be on your toes, ready to be articulate and talk about the case, just like the best oral advocates.

I learned those things, but he was also incredibly dedicated to making sure that he got the right answer and following the law where it led.

And I greatly, greatly respected that.

And that is something that I've emulated, you know, and made a theme of the book.

- But when you went into the court yourself, what was the greatest adjustment?

You had been there, you had seen it, what was the greatest adjustment when you returned as a justice?

- So when I returned as a justice, it just is a different time from the time when Justice Scalia was on the court, and you know, the world has just changed.

That was 1998, 1999, everybody was still getting their news in paper newspapers, you know, "The Washington Post" spread out across the morning breakfast table and now social media and, you know, everybody consumes their news on phones and the internet, the court, everyone's just more recognizable.

I often tell the story of when I was clerking, I was with one of Justice O'Connor's clerks in the Great Hall of the court, and there was an exhibit about Justice O'Connor and a tourist came up to Justice O'Connor in the middle of the exhibit about Justice O'Connor and asked for directions.

(Mark and audience laughing) That just wouldn't happen now in the court.

Just, you know, Justice Scalia didn't need security and he drove himself to work and, you know, he was able to have, I think, more of a regular life than Justices today are.

- How do you do it with your family?

You have a very demanding family life.

You and your husband Jesse, you both have demanding careers.

How do you balance all the things that are on your plate at any given time?

- That's why I have that picture of my great-grandmother's house on the desk.

We try to make use, Jesse and I both do, of every minute.

We get up early.

I'd like to say that we go to bed really late, but we've increasingly become, you know, 9:30, you know, 10 o'clockers, we can't last, but get up early and we just try to make use of all of our time.

I told the students earlier, and I think it's true, that tasks expand to the amount of time you have to complete them.

So we are very efficient, you know, I know that I've gotta get my work done during the work day and be home for family dinner and I could return to it after the kids go to bed.

But, you know, Jesse contributes a lot.

He does more than his fair share.

And for that I'm very grateful.

- What was the greatest surprise to you in taking on the role?

- When I started at the court, I think it was the biggest adjustment was definitely becoming a public figure and being recognized, you know, in the grocery store.

Just the loss of anonymity and the loss of privacy wasn't something that I had fully internalized when I said yes.

And you know, you had to get used to it real quick.

- Hmm.

I alluded, Justice, to the upheaval and division that we're seeing in America today.

I wonder what your thoughts are in the wake of the political violence and general discord that we've seen over the past months.

- You know, I was reflecting on that, especially in this place, and I was thinking of the number of assassinations during President Johnson's presidency.

Of course, he came into office when JFK was assassinated and then there was RFK and Martin Luther King Jr.

and Malcolm X. And just during his presidency, that was such a time of political violence and upheaval.

And I hope that's not the kind of period that we're moving into now.

I think that I was telling the students this, I think that it's a time of such bitter partisanship that I think one step we can all take is in our own circles and in our own space, working to speak to one another across partisan divides, working on respect and collegiality and civility.

I think that's something we actually do pretty well at the court.

I describe in the book, you know, I've never heard voices raised in the conference room.

It's only the nine justices in the conference room when we make decisions, voices are not raised.

We go to lunch together, we shake hands before we go on the bench.

And I think instantiating some of those practices in our own life is one step forward.

But I think, you know, having no tolerance for violence, I think is important.

- Hmm.

And we can, as you suggest we can learn from the court, I wonder if the booth can show a photograph that appears in the Justice's book, and this is of your former boss, Antonin Scalia, and the woman you were placed on the court, that notorious RBG Justice Ginsburg, on an elephant in India.

And you write, "Live life like Justices Scalia and Ginsburg who accompanied serious and vigorous public debate with warm personal friendship and mutual respect."

Easier said than done, I would imagine when you have bitter disagreements.

How did they do it?

- They spent time together and, you know, I think that's one of the secrets of how the court does this and leaning forward, it's something I feel passionately about.

We have lunch together every day after oral argument and after conference.

And so we sit roughly two weeks of the month, and then we're writing opinions, reading briefs the other two weeks.

So those weeks that we're sitting, you know, that's four days a week that we're having lunch together.

Justice Scalia and Justice Ginsburg went to the opera together.

They had dinner together, their family spent New Year's Eve together.

They didn't let the fact that they sharply disagreed about matters of constitutional interpretation or politics or anything else stand in the way of being on an elephant together in India.

They traveled together.

So I think that nowadays, and I see this particularly in young people, it seems like there's this idea that you can't be close friends with people that you disagree with, especially if it's about certain issues.

And that's just not true.

And that's not how Justices Scalia and Ginsburg lived.

- Hmm.

You write in the book about how life works at the court, what your day looks like and how you render decisions.

I think one of the most interesting things about the cou and one of the most secretive things is the meetings you have with your fellow justices in a conference room.

Take us into that conference room and what the decision process looks like as you all speak, when you get your turn.

- Sure.

So the conference room is where the justices meet always on Friday afternoons.

Sometimes we'll have an additional conference earlier in the week, depending on the number of cases.

And there's a large table and only the nine justices are present.

So the court is a branch that does all of its work itself.

We have help from law clerks, but there are not staff, there's no law clerks, there's no other staff in the room with the justices when decisions are made.

So in fact, you know, there's no job training because no one sees it.

It's not like I got to go in there with Justice Scalia so I knew what happened.

I mean, the first time that I went in, I wasn't exactly sure how long I was supposed to speak.

I didn't exactly know how it would all unfold.

We sit in order of seniority and we speak in order of seniority.

So the chief will kick it off and then it goes to Justice Thomas, who's the most senior associate justice, and then around the table from there.

And each justice lays out his or her view of the case and, you know, tentative vote.

So I go second to last.

The other piece of tradition about our time in conferences, that if anyone knocks at the door, the most junior justice answers it.

(audience laughing) So that was my job for a while, and I've been able to pass the baton to Justice Jackson because no one else can come in the room.

So if someone has a delivery, a message, a sweater, if someone's cold, to deliver, the most junior justice has to go to the door and get it and bring it in, rather than having anyone else enter into the conference room while we're deciding the case.

- So you and I were talking in the Green Room.

You are one of six justices currently on the court who served as clerks, and you returned to the court to become a peer with those who were on the court when you were a clerk, which has gotta be a strange feeling, right?

- Yes, I was telling Mark that Justice Thomas and Justice Breyer were both on the court when I was a law clerk.

So when I became their colleague, it was very much that feeling of having to start call your parents' friends by their first name.

I just was like, "I'm supposed to call you Clarence now, what?"

So that was a difficult adjustment.

It was a kind of an odd feeling.

- There have been a number of controversial decisions that have been rendered since you have gone on the court, one of which is Dobbs versus Jackson Women's Health Organization.

That that overturned Roe versus Wade, which was rendered in 1973.

So it was a precedent that stood for almost half a century.

Why does that decision, why was that right to an abortion, which Roe versus Wade gave Americans.

Why was that not considered a fundamental right under the due process clause that you write about in the book?

- So there are two aspects to the Dobbs decision.

One is, and this happens anytime the court decides whether to overrule precedent, the threshold question is, was the precedent right or wrong?

But not every wrong precedent gets overturned.

So then the secondary question is, if it's wrong, should it be overturned or should it stay?

So with respect to Roe, there had been an interim case, Casey versus Pennsylvania, which had decided solely on stare decisis grounds.

It didn't defend Roe's decision on the merits about whether the due process clause protected a right to an abortion or not.

But it let it lie on stare decisis grounds saying that, you know, letting the decision stay rather than overturning it would be a way to settle the national controversy surrounding abortion which it didn't settle in those ensuing years, the court's opinion and Dobbs pointed out.

So what I talk about in the book is really a focus primarily on the antecedent question of whether the 14th Amendment's Due Process Clause encompasses the right to an abortion.

So I'll try to succinctly describe what I say in the book.

The Bill of Rights, well, the Amendments and the Bill of Rights lays out enumerated rights.

So they're expressed.

So you can look at the Constitution and say, "I have a freedom of speech, you know, freedom of religion, for example, the right to bear arms to be free from unreasonable searches and seizures, et cetera."

The Constitution also protects unenumerated rights under the court's precedent.

And those are housed in the 14th Amendment's Due Process Clause, which says that "No person shall be deprived of life, liberty, or property without due process of law."

Those rights are not spelled out.

And Roe versus Wade had held that a right to terminate a pregnancy was one of the unenumerated rights that was implicit in the word liberty.

If you know, liberty means a lot of things, obviously, to a lot of people, and we were just talking about disagreement and polarization.

I'll bet if we open the floor and had discussions about what liberty encompassed and what should have constitutional protection, there would probably a lot of competing opinions about various rights.

So to prevent the court from being nine people that simply pronounce the rights that we think would be important to the American people.

Because remember, if a right is protected by the Constitution, it removes it from the democratic process and it makes it very difficult for the democratic process to regulate it in any way.

So to determine whether such a right is protected by the due process clause in that open-ended word, liberty, the court asks under its precedent, a case called Washington versus Glucksberg specifically defined.

So you're asking the right to terminate pregnancy.

You're not talking about just liberty or control over one's body more generally.

Glucksberg says you must identif the right with specificity and then ask whether that right is firmly rooted in the history and traditions of the American people.

And the reason to ask that question is the court should not be telling the American people what rights they should agree to protect, but what rights they have agreed to protect, what rights they do agree are so important that the democratic process can't reach them because the court is interpreting the Constitution when it exercises judicial review to decide whether a law is unconstitutiona or constitutional based on what the people have decided.

And so that is the metric that the court uses to determine what the people have decided.

And Dobbs laid out the evidence for, to demonstrate that Roe was incorrect to say that a right to terminate a pregnancy had been deeply rooted in the history and tradition of the American people.

And its historic roots, its traditional roots were not really in dispute.

I think really the dispute between the dissent and the majority in Dobbs was more about the role of the court in making that determination, whether the court should be forward looking and identifying rights that should be protected or whether this history and tradition test should control.

- So about two thirds of Americans believed in the right to an abortion, and as I mentioned, the precedent has stood for 49 years.

Should that be considered as you are considering among the court whether this is a fundamental right?

- Well, I don't, let's see.

We didn't check opinion polls.

I'm not sure, I mean I think a lot of polls, there are a lot of polls about abortion.

You know, the court doesn't look at opinion polls.

I think when you're saying, when you're pointing out that there's support for an abortion, I think that means a lot of things to a lot of different people, even among those who say, because the right to an abortion, you know, let's assume that the Constituti protects such a right.

There would be a lot of questions.

And the court was involved in drawing a lot of fine lines.

Dobbs itself involved the question of where do you draw the line?

Is it at the first trimester?

Is it at 20 weeks, 21 weeks?

It's not a simple on/off switch, a yes or no.

It's a pretty complex question.

And it was also pretty clear that in the years following Roe, the debate had not died down.

It wasn't an issue that there was such, you remember the Constitution has super majority buy-in.

It's a document that trumps all laws that are adopted through the ordinary legislative processes.

So you would have to be able to conclude to say that it had the same super majority buy-in as say the right to free speech, that it was supported by a super majority.

And I think when you look at the history and traditions of the people, the way the law had developed in various states over time, it had not become that kind of a settled issue.

- So can we expect that other things that there were based on precedent that we might consider fundamental rights, the right to bear arms or the right to use contraceptions could contraception, rather, could be overturned by the court?

- Well, the right to bear arms is explicit in the Second Amendment.

So are you asking more specifically about the unenumerated rights?

- Well, I'll take gun laws off.

Any right that we might consider a fundamental right.

It has a precedent and I understand what you're saying about enumerated and unenumerated, but I think there was an expectation that that would be upheld.

It was considered a fundamental right.

I'm just wondering, are there other, can we anticipate that there might be other decisions rendered by the court that take away what we might consider fundamental rights based on the precedence that have been ruled?

- Right.

So, I mean, Dobbs was about one issue and Dobbs was very clear that it was about only one issue.

So, you know, no, the court, you know, the court of which I'm part is typically called The Roberts Court because courts are named after the justice who's chief at any one time.

The Roberts Court actually overturns precedent at a lower rate than its predecessor courts.

You know, the statistics, when you look at the rate of overruling, The Roberts Court has overruled precedents roughly once a year.

It was about twice per year, roughly during the Rehnquist years.

It was at about three a year during the Warren and Burger years.

So precedent, you know, this principle that generally speaking the court stays the course and doesn't overturn its decisions.

You know, that is the far and away the general rule.

That's how the doctrine works.

But no justice has ever said that all precedents are, let's see, the doctrine of stare decisis itself recognizes that the court sometimes makes mistakes and that it corrects mistakes.

But that is very much the exception rather than the rule by the terms of the doctrine.

And if you look at the numbers on the docket, that bears it out.

- I think what another point that you make in the book is that sometimes you have to make a decision constitutionally that you don't believe in personally and you cite Justice Scalia who decided a case that allowed Americans to burn the flag, although he found that personally repugnant.

How do you deal with that?

- Well, that's the oath.

I've taken an oath to uphold the laws of the United States, and that doesn't just mean the laws that I like and it doesn't mean that I get to impose my personal beliefs on the American people.

I mean, we live in a pluralistic society and people have a lot of different views, including views that differ and sometimes very sharply from my own views.

You know, I write in the book that I, before I was on the bench when I was a law student, I wrote an article expressing opposition to the death penalty.

But I sit on death penalty cases and I have, you know, I've affirmed, voted to affirm death sentences or say that, you know, there's no legal error in those cases.

I think that is the backbone that's required in the job.

And I think that's one of the, probably the most important character trait for any judge is to be able to set aside the judge's own personal beliefs and preferences to follow the law and do what the law requires.

- I wonder, when you're making these tough decisions, Justice, really difficult decisions, how do you rely on the other justices?

Do you talk to them?

Did you commiserate with them?

How does that work?

- So are you talking about when we go through the decision making process or... - I guess the decision making process, but also a monumental decision like that that's gotta weigh on you.

Do you look to the the other justices to help, to guide you or to commiserate with or to just talk about the weight that you bear?

- So the way the court works, it's almost like nine independent law firms within the court.

Each justice has his or her own chambers.

So I've got four law clerks and three staff members.

So when I'm deciding a case, and this is the same for my colleagues, when we're working through it before argument, after argument, before conference and during the opinion writing process, I'm really talking about the case primarily with my own staff, with my own law clerks, and then the justices talk in the conference room.

So that is the primary place where the justices hash out the case with one another.

That's not to say people don't have other informal conversations, but really it is focused with all of us as a group together around that table in the conference room.

- Let me talk about another controversial decision, which is Vasquez versus Noem, that allows federal agents to target people for deportation based on among other things, race and language.

Do you worry about the precedent that sets and that we might disproportionately target those who are of color or of different ethnic backgrounds?

- Well, that is a pending case.

So one of the rules of the court and one of the ethical rules that justices have to follow is that I can't talk about cases that are pending.

Only cases that have already been decided.

And Vasquez is a case that came up, or the Noem case that you're referring to is a case that came up on the court's emergency or interim docket.

And so the court has not rendered a decision on the merits of that case.

It's continuing to be litigated in the cases in the courts below and may probably will come back up on the merits at some point in the future.

- That was part one of our interview with Justice Barrett.

Tune in next week on live from the LBJ Library for part two.

And thanks for joining us.

(uplifting music) (uplifting music continues) - [Announcer] Funding for this program is provided by Panonica Foundation, Judy and Peter Blum Kovler Foundation, Ascension Seton, BP America, Laura and John Beckworth, St.

David's HealthCare.

And by.

And also by.

A complete list of funders is available at APTonline.org and LiveFromLBJ.org.

(flute music) (upbeat music)