Franke: ‘Listening to the Law’
by Mark Franke
Supreme Court nominations are great political theater, great, that is, if you enjoy the spectator sport our uncivil civic discourse has become. But there is an educational aspect to this verbal sturm und drang. For example we have become educated on the interpretative methodology of originalism, the methodology used by those who look to the Constitution’s original meaning for understanding.
Related to the originalists are the textualists, or maybe they are two sides to the same coin. I will leave that distinction to one of my attorney friends to explain.
Another group are those who use terms like a “living” Constitution and argue that the Constitution must be reinterpreted to adequately address the nation’s current needs. If I oversimplified this school of legal thought, it’s only due to my suspicion of its lack of fidelity to what the Founding Fathers wrought.
I recently learned a new designation for this approach — purposivism — an interpretive methodology that looks to why legislation was enacted and to apply this purpose to judicial thinking. For this I owe thanks to Supreme Court Justice Amy Coney Barrett and her recent book “Listening to the Law: Reflections on the Court and Constitution” (Penguin Random House 2025, 246 pages plus notes including the text of the Constitution, $20 hardback at Amazon).
“Listening to the Law” is an insider’s view of how the Supreme Court works and how the justices think about their cases. It is written for the layman and should be mandatory reading for the armchair critic of Court decisions. If you think you understand a Court’s opinion based only on news headlines, Justice Barrett will quickly disabuse you of that notion.
The first part of the book is a limited autobiography of her ancestry and her legal career. Her family life gets appropriate emphasis. One gets a glimpse of a typical, upper-middle-class family with two professional parents working while trying to raise a traditional family with a houseful of kids. Good introduction, Amy; this immediately gets us on your side.
Barrett states her judicial philosophy up front: She strives to check her personal preferences at the courthouse door so that she can review each case on its merits. She used the analogy of Odysseus’ being tied to the mast while passing the Sirens so that he doesn’t hear their seductive song. This does not imply a mental tableau rosa; her self-described approach is carefully informed by legal precedent as well as her originalist rubric.
Her discussion of the personal relationships between and among justices disrupts what many Americans choose to believe about the Court. For example she talks about the close personal friendship between Antonin Scalia and Ruth Bader Ginsberg, two justices who appeared to be opposed on most hot-button issues. Barrett describes their differences as arguing, not quarrelling, an approach she recommends for the rest of us when with others who disagree. Good advice, that.
The popular image of a Supreme Court split down Republican-Democrat lines just doesn’t align with the facts, as Barrett reports them. In her tenure on the Court, one with a 6-3 Republican appointee majority, approximately half of the cases resulted in unanimous or near unanimous decisions. The other half had multiple alignments of majority-minority opinions and only several handfuls broke down based on political party appointment.
Barrett describes this as a “baked-in need for compromise.” It’s what allows the Court to function productively. The justices have to get along in what she calls “an arranged marriage with no option for divorce.”
Barrett’s chapters on how the Court works are quite interesting. One learns the importance of the law clerks, similar to Congressional aides, and the close personal relationship between a Justice and his or her four clerks. Barrett knows this relationship from both sides, having served as a Scalia clerk herself.
She explains the process for granting emergency relief, which I found quite informative in this age of judge shopping to get what one wants politically. It takes more than a single judge to go along; the plaintiff must show a reasonable possibility of at least four justices to agree.
Her description of the writing of the majority opinion also demonstrates how compromise is crucial to the decision-making process. Sometimes it is only negotiation on minor issues that achieves a majority for a clear decision. The role of Chief Justice is integral to this process as he works to get as many justices to sign on with the majority as he possibly can. The fact that half all decisions during Barrett’s tenure were unanimous or near unanimous is proof of John Roberts’ success at this.
I could pick a few nits with Barrett’s writing style, such as always using the feminine pronoun for an indefinite or mixed group, but my most concerning issue is with her apparent belief that the Constitution is too difficult to amend. To my classical liberal way of thinking, that is one of its strengths. That said, she is not advocating wholesale rewriting of this venerable document, just an easier path to update it to address new issues that rise to a basic law level.
Barrett is not embarrassed to credit Justice Scalia with his influence on her judicial career. She clerked for him and learned from him how to approach difficult cases. The Martin-Quinn score for Scalia is more conservative than Barrett’s but they may grow closer as she works through more terms on the Court.
Barrett is criticized on the right for some of her votes on hot-topic issues, seen by “true” conservatives as a desertion of principle. Reading her book leaves me with two possible explanations for her putative ideological lapses. First, her application of the originalism rubric is the primary tool in her toolbox. Her interpretative analysis of the Constitution is informed more by the Founding Fathers than by any current political movement. Second, her understanding of what is under the hood in Court proceedings enables her to work toward achievable majority opinions that are as non-disruptive as possible.
At least that is my layman’s take on Amy Coney Barrett’s self-described role on the Court. Your mileage may vary, but you can only know that for sure if you read this book. It will be worth your time.
Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.
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