Transcriber: nvidia/parakeet-tdt-0.6b-v2, sat-12l-sm, and large-v3-turbo
Source
Participants
Main
david rubenstein
26:42
justice amy coney barrett
scotus27:54
Appearances
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barack obama
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bill clinton
d00:02
donald j trump
admin00:05
george h w bush
r00:02
george w bush
r00:04
jimmy carter
d00:03
joe biden
d00:02
ronald reagan
r00:01
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Voice
Speaker
Time
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Why We Felt Left Behind00:07:03
unidentified
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America's Book Club is brought to you by these television companies and is supported by the Ford Foundation.
From the nation's iconic libraries, America's Book Club takes you on a powerful journey of ideas, exploring the lives and inspiration of writers who have defined the country in conversation with civic leader and author David Rubinstein.
As a young boy growing up in Baltimore, I went to my local library and was inspired to read as many books as I could.
Hopefully people will enjoy hearing from these authors and hopefully they'll want to read more.
unidentified
Now from the Folger Shakespeare Library, a Notre Dame Law School professor for 15 years, only the fifth woman appointed to the Supreme Court and the author of Listening to the Law, Supreme Court Justice Amy Coney Barrett.
Many, many years ago, I lived on Capitol Hill when I was first married, and we came to the Folger, my husband and I, back then.
And then last spring, the library was very gracious, and they had my staff over and we got to have a tour, and it's been redone since the last time I lived in Washington, and it's beautiful.
So I think I'd like to talk to you about why you decided to write a book relatively early in your tenure on the court and what the message is you'd like to get out to people from that book.
And why don't we just start at the beginning?
So you're relatively new on the court.
You're now beginning your sixth term.
Okay.
And you're now not the most junior Associate Justice, the second most junior.
Correct.
So why did you want to write a book now as opposed to 10, 20, 30 years from now?
I shared a little bit about myself on the book because I think when, if you want to draw a reader in, the reader should know a little bit about you and who you are.
But it's not a memoir.
Maybe if I did a memoir, it would be later.
What I wanted to do, and I was a professor before I became a judge, I wanted to draw people into the court.
And I mean, teach makes it sound boring, so that's not really how I was thinking of it.
But I wanted to introduce people to the court and how it works and to the Constitution.
Really kind of, and I was inspired to do it because of all the questions that I got from people who came to visit the court.
Main message is that the court is a great institution, and our Constitution is a great document.
Both are flawed, both are human institutions, but people should understand how the court works, how the law works, that the court is an institution that's focused on legal analysis, not politics.
Now, when Sandra Day O'Connor was nominated to the court by President Reagan, she was the first woman nominated to be on the Supreme Court and the first woman to serve on the court.
There are now four women on the court, and you almost have a majority.
Do the four women ever get together and say, well, we have some things in common, or are there now so many women on the court you don't feel a need to get together?
So, one of the things people don't understand about the court, I think, is that when you disagree with people, you're not necessarily disliking these people.
You just have a disagreement on the law.
So, when you write an opinion and somebody disagrees with you, it's not a personal matter.
I had met him, and probably because I had met him before, he interviewed me when Justice Kennedy retired for the seat that he ultimately chose Justice Kavanaugh for.
So, I had met him then, and we had talked, you know, I can't remember how long, but we had talked for a while then.
And so, then when I came back in the second time, the conversation was a bit briefer.
So, now that you're on the court, is it as enjoyable being on the court as you once thought, or would you rather be a law professor still or in the Seventh Circuit?
So in law school, as you know, since you went to law school, David, you don't find out how you're doing until that first set of exams, which happens at the end of the first semester.
And I did well on the exams.
And so it wasn't really until I got the grades back that I thought, okay, I'm good at this.
And when you begin your clerkship, the way it works these days, when you begin your clerkship with, let's say, Judge Silverman, do you already have a clerkship lined up with Justice Scalia, or how does that work?
And when you're the clerk on the court for, let's say, Justice Scalia, did you say I should be on the court one day or I would like to be on the court?
I was interested in teaching, so I did a fellowship at George Washington Law School that was for people who were thinking about teaching to start a research project.
And Notre Dame found out that I was interested in doing this fellowship, and so they called and asked me to interview, and then I wound up getting that offer.
So that was difficult, and I knew that would be difficult, which is one of the reasons that I had to really think about whether to say yes to even the nomination.
It was a whirlwind, it was fast, but you know, I'm from Louisiana, and so some ways I think that in my mind, I thought of it as a hurricane.
If a hurricane stops over the water, it stalls and it gains strength.
So the fact that it went fast, I think, maybe it made it easier to deal with.
So, Justice Thomas administered, justices take two oaths, the constitutional oath and the statutory oath.
So, Justice Thomas administered the constitutional oath to me at a swearing-in ceremony at the White House, and then Chief Justice Roberts administered the statutory oath to me at the court itself.
So we, you know, say we have about 4,000 petitions for certiorari.
The clerks will take an initial cut and they pull out anything that seems like it can be an arguable candidate for the court's review so that the justices are not reviewing all 4,000 in the initial cut.
To decide to take a case, I think it's four of the justices have to say yes, let's grant that petition.
Is that correct?
So four of the justices, which means you don't necessarily have a majority, but you have four who want to hear the case.
Then when that occurs, the lawyers are told to write briefs, which are really, they shouldn't call them briefs, they should call them longs because they're pretty long.
Briefs are not what they used to be in the old days, I guess, because now each litigant will file a brief.
But then we have a thing called amicus curiae briefs where friends of the court send in their own briefs, and they can be quite extensive, right?
So when you get the briefs to the case, do the justices walk around and say, hey, I just read this brief and I actually think this is what I'm going to do, or do they talk to each other before you actually have oral arguments?
No, there's no meeting of the justices before oral arguments.
So I talk about the cases.
Our arguments will start on Monday and I'll be talking about the cases.
And I have been talking about the cases with my law clerks, but I won't discuss cases with the other justices until we have a conference, a formal conference.
He's always considered the most senior, even if he has like, so Justice Thomas has been on the court longer than Chief Justice Roberts, but the chief is the chief and always gets to go first.
I use the same formula or the same procedure that Justice Scalia did, which is I have the law clerk do a draft first, and then I take the draft and I make it my own from there.
So they come from law schools and I hire, I don't hire clerks just from, say, Harvard and Yale.
You know, I hire clerks from all law schools.
They come, I have a committee of my former clerks that reviews their applications and then they will decide to screen candidates that they think would be good, looking at grades and recommendations from professors, recommendations for the judges for whom they worked.
Now, the clerks are paid a government salary, but when they leave, they get a high income from starting law firm salaries, maybe $200,000, $250,000.
And if you're a Supreme Court clerk, sometimes you get $400,000 or $500,000 as a bonus.
Does it ever make the justices say, this is strange, where I'm getting a modest government salary to be a justice, and my clerk is now going to make three times what I'm making?
Okay, so you have the four clerks, and then let's suppose the clerk and you developed an opinion, you're happy, you then circulate it to the other justices?
So I will do more, there's more process in chambers.
The clerk and I working on the case reach a point where I'm satisfied with it, and then we will have everybody in the chambers vet it, so all of the clerks weigh in, and then I will circulate it to all the other justices.
And after the opinion is circulated, the draft opinion, do any of the justices ever call you up and say, this is a great opinion, I've changed my mind, and now you've persuaded me.
So after a justice dies and donates his or her papers, you can see all of these memoranda.
So we communicate by memoranda, and sometimes it does happen that people will write a memo and say, you know, this was a really good opinion, and I'm sorry to do this, but I'm persuaded by the dissent.
Now, when you're a justice of the Supreme Court, people are not supposed to talk to you about virtually anything that could affect the court.
So how do you like socialize with people in Washington?
You can't, I mean, people are afraid of talking to you, I assume, because they can't say, what are you working on or got anything interesting to talk about?
So how do you navigate the cocktail conversation you must inevitably find yourself in with people?
I feel it's a less carefree, I think I would say, less carefree, because partly for the reasons you said, I always have an internal monitor going on in my head about what I can say and what I can't say.
Now, the person for whom you clerked, Justice Scalia, kind of, I won't say invented, but he kind of perfected the idea of what we call originalism, which is to say when you're interpreting the Constitution or a statute, you look at the words that are written, and those are the words that are the ones that govern your decision.
Other people have a view that you might call it pragmatism, which is to say, let's look at the Constitution or the statute in the way it might be properly interpreted today, given the way the world has changed.
So if you were to say, are you an originalist, or are you a pragmatist, or in between, how would you characterize yourself?
I would say, too, though, and I try to describe this in the book, that originalism, I think, is sometimes misunderstood as requiring a judge to put on colonial clothing and imagine themselves to be one of the white property-owning Christian men who ratified the Constitution.
But it's not so rigid, but it does mean that the meaning of the words does control.
No, I would say that the legislative history, or when you're talking about the Constitution, we have such a rich, there's so many rich surrounding documents, including the Declaration of Independence, including things like the Federalist Papers.
No, all of those things are important because they're part of the context of the words.
I think what an originalist would say, and frankly, I think even a pragmatist would say this too, is that you don't treat any one piece of evidence about what one person thought or one small group of people thought as dispositive, as controlling.
So you can take it all in as information that's relevant.
But for an originalist, the goal would be to figure out what does it mean to have an unreasonable search and seizure, as the Fourth Amendment puts it.
In the days when the Constitution was drafted, I don't think it was recognized that the court would have as much power as it did over the years because when the court issues an opinion, pretty much people say that's the law of the land.
You're the final decider.
I don't know when the original document was drafted, whether people realized quite how powerful the court would ultimately be.
Do you think people who drafted it recognized that the court would be the final arbiter of so many decisions, social or other decisions?
So when you look at the Supreme Court building today, which is right across from the Capitol, it says right on the top of the Supreme Court building, equal justice under law.
And many people, when they walk by, must think, well, that's in the Constitution, that's in the Declaration of Independence.
So I believe it was, was it Charles Evans Hughes, I'm trying to remember, who wrote down when Cass Gilbert was trying to decide when he designed the building, and he suggested it.
When you teach, now people look at you differently, or they're afraid to ask you questions, or they just think they're intimidated by being out in front of a justice?
Now, the Supreme Court has been viewed by some people as being, quote, political.
And the Supreme Court's been criticized for this for hundreds of years.
Chief Justice Marshall was heavily criticized.
I think maybe there was even an effort to impeach him at one point.
So it's not like new, but as somebody my age, I remember this when Earl Warren was the Chief Justice.
The Brown v. Board decision in 1954 produced a lot of impeach Earl Warren billboards around the country and so forth.
The court has always attracted some criticism.
Today, do you find the court is generally respected by people in the country or criticized?
Or do you feel today that you have an obligation to explain what you're doing more than maybe you would if the court wasn't being criticized from time to time?
You point out in your book that while people focus from the five to four decisions, most of the decisions, or a large percentage, are actually unanimous or they're not five to four.
And was that a surprise to you to realize when you got on the court how many decisions are fairly not controversial?
It wasn't a surprise to me because I had been teaching constitutional law and just because I had been a law clerk, but I know that it surprises other people, which surprised my students when I taught.
It's really, you know, I think last term now, I might not have the number exactly right, but I think it might have only been six cases that broke down six, three, by party of appointing president.
So when you talk to people around the country and they ask you questions about the court, what do you think is the biggest misconception about the Supreme Court?
That it's overly political or every decision is five to four?
What do you think people misunderstand about the court the most?
I think that they think that justices are making decisions based on some sort of combination of their own judgments, their preferences, or out of loyalty to the party of the president who appointed them.
And I don't think people appreciate the extent to which across the board for all nine justices, these are decisions that are driven by close legal analysis.
So when you are writing an opinion, do your clerks ever convince you to go in a different direction?
You were otherwise thinking or generally, you're the justice and you say, this is what we're going to do, and they don't try to persuade you otherwise.
If I, if I'm surrounded by a bunch of people who just say yes yes, you're right, you're right, then I'm not going to be challenged to reexamine my ideas.
It's their job to present the best arguments on the other side.
So when you listen to an argument on the Supreme Court, and let's say you have an advocate, let's say a former solicitor general or something, are they really great advocates these days who are in front of the court or they get sometimes a person who's never argued in front of the court, but he or she says, I took my one chance to argue in front of the court, and now I'm going to do it.
Do you feel sorry for these people because they're sometimes not really that good at it?
Or do you recommend that people get these people who are experienced?
It's probably a little bit of both, and it's probably, you know, not in every case, not every justice.
I mean, people really do have questions that they want to ask the advocates, and they also want to let people know what the issues are that they think are important.
So the Constitution is often cited as a reason for the court to do decision A or decision B, but it's the Declaration of Independence, which we're about to celebrate the 250th anniversary of, is that really a significant legal document or not in the court's view?
So the Declaration of Independence is one of our important founding documents.
And as you say, its birthday is coming up.
It's not law, so it doesn't have the same legal significance as the Constitution does, but it's certainly part of the history, as we were talking about before, the context of the Constitution, the history, and important to America, of course.
And I would say that I certainly hope that those interested in law school are not using AI to do all their writing, because one of the things I think about the law is that the way that you write reflects the way that you think.
And the ability to write out a legal analysis is part of your ability to reason through a problem.
And I think that's one of the most important traits of a lawyer.
And that case was famous not only because it reversed the existing precedent, but it was leaked in advance, which I don't think there had been a leak like that before.
So the Supreme Court tried to find out where the leaker was, and typically in Washington, you never can find out who the leaker was.
But has the Supreme Court changed its procedures in any way to kind of make it less possible that somebody could leak something?
So today, when you are looking at overturning a precedent, is that a very difficult decision for a court when you're overturning a precedent, like the case that overturned Roe v. Wade?
Was that take more time for the justice to really go through those kind of things because you realize you're overturning a precedent or they're treated the way almost any case is?
So in Chisholm versus Georgia, there was a dissent.
So there were always separate opinions.
It is certainly true that the style of separate opinions or their number changes and it ebbs and flows over time.
But I think one of the important things about dissents, you were mentioning when we started our conversation that in the law, arguments on paper are about ideas.
And I think that that is one thing about the court, you know, that the court has been successful thus far in maintaining, that these are legal arguments, but they're not personal attacks.
So when you're a justice of the court, and let's suppose you want to go to a dinner, is it hard to get a dinner reservation in Washington if you're a justice of the court or it's not, or you don't go out that much, so you don't have to worry about that?
We used to at my library, my local public library, we would have those summer book clubs when you could fill out the charts with all the books that you read.
And I used to get multiple ones because I would fill them all up.
And I can remember the first books that I read in first and second grade when I started reading chapter books were The Chronicles of Narnia and Nancy Drew.
Now, when Justice O'Connor went to the court, she found out that there was no real program for exercising, and she began a program, I think, for exercising.
And I think the other justices, some of the female ones, exercise with her.
Is there any kind of male or female exercise club in the court anymore?
So when people, you give people tours of the Supreme Court building, I assume you have some friends you might give tours to, what are they most impressed with?
The grandeur of it?
Or they get intimidated when they actually go into the court itself?
They're impressed by the grandeur, but the thing that people feel is most special is when they get to see the court's basketball court, which is the highest court in the land, as a basketball court in the very top floor.
I don't think that they would say that they thought that I would be a Supreme Court justice.
I think they thought I would be a lawyer.
I think even my mom thought I would be a lawyer.
But they give advice when asked, but they've always been very respectful of and careful to let us make our own choices just with kind of a light touch of guidance.
In Washington, D.C., or do you have someplace, you don't have to give the specific city, but someplace you go way to and you can chill out a little bit?
But today, you think AI will change the way the legal system operates as well as every other part of the country, or you think the legal system is too unlikely to be effective?
Well, I think they will learn a little bit about me, but I think what I want them to take away from the book is that they should be proud of the court.
And I want them to be able, I want them to understand the way the court grapples with the legal questions that matter to the country.
And it has this reference here at the top that is it not a miserable thing that the skin of an innocent lamb should parchment be made and then with a little blotting over with ink a man should undo himself.
So in, you know, Shakespeare, of course, wrote about the courts and the law frequently.
And I think that's one example, but it's interesting because he's referring literally to the physical material.
And so what I have out here is really that skin of an innocent lamb.
This is all parchment that has been individual sheets that are stitched together and they make these roles.
Giving Tuesday: Protecting Democracy00:01:49
unidentified
So these are roles of the court from Norfolk in England.
This is from this, there's actually eight of these total in this collection, and they span from 1511 to 1631.
See more with Justice Amy Coney Barrett and the Folger Shakespeare Library's archive on America's Book Club, The Treasures, available at c-span.org slash ABC and C-SPAN's YouTube page.
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