Justice Barrett’s Campaign Biography

A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.