Is Justice Barrett Listening?

Leah Litman prosecutes Justice Amy Coney Barrett’s new legal memoir, “Listening to the Law: Reflections on the Court and Constitution.”

By Leah LitmanNovember 22, 2025

• Law

• Politics

• Memoir & Essay

JUSTICE AMY CONEY BARRETT’S new book Listening to the Law: Reflections on the Court and Constitution recycles tired tropes about women, the court, and the law. The book doesn’t really add to our understanding of anything—except, perhaps, of how Barrett’s approach to the world and to judging is divorced from reality and ill-suited to the current moment (if it ever made sense at all).

Like virtually every other public writing by virtually every Supreme Court justice, Barrett’s book ticks through old chestnuts about how ordinary lawyers put on judicial robes and magically become independent, impartial arbiters rather than politicians. She dutifully recounts a history of strong, unbiased federal judges facing down political opposition and insisting on desegregation. Perhaps the point of these recycled bits is to lull people into complacency about the Supreme Court with bromides about the third branch. Just to give you a sense of the vanilla flavor: we are told that Brett Kavanaugh had a “brutal” confirmation process, but Barrett relays no details about the sexual assault allegations against him that brought into question his fitness to serve. There are, Barrett asserts, “multiple sources of outside pressure on judges,” but she makes no mention of the Federalist Society or other right-wing groups that have labored to keep Republican appointees in check. She tells us that “the NAACP and other interest groups” file amicus briefs at the court, but she offers no discussion of briefs funded by right-wing dark-money interests.

Even for a judge, Barrett goes above and beyond in fawning over judges. She recounts someone else’s story about the Supreme Court justice she clerked for, Antonin Scalia. According to the lore, Scalia “took [the] hands and held […] close” a “woman covered with open sores.” The implied parallel between a Supreme Court justice and Jesus Christ is rather arresting.

Barrett’s approach to the topic of gender is also memorable, if predictably traditionalist. The first chapter starts with a vignette about her great-grandmother, who had 13 children during the Great Depression—a number that dwarfs Barrett’s own brood of seven. Barrett wants people to know that women can have it all, though that will require considerable sacrifice and suffering. There is little mention of childcare or caretaking help. At several points, Barrett acknowledges feeling overwhelmed or sorry for herself, given the difficulty in balancing both family and career. But each time, the story demonstrates that she bravely soldiered on—as if to nudge women who are less well-off than she is to simply grin and bear America’s withered social safety net.

Sometimes Barrett leaves the impression that even the women who have it all are, really, still just wives and mothers. This is evident in Barrett’s tendency to locate her authority, even as a Supreme Court justice, in these particular roles. When she introduces the fact that the original Constitution did not recognize descendants of enslaved persons as people, Barrett invokes two of her children, who were adopted from Haiti and are descended from enslaved persons. They are offered as a source, if not the source, of her moral authority.

In Barrett’s public comments on the court, she frequently traffics in parenting clichés. For example, in a recent interview with USA Today, Barrett mused that judging isn’t like parenting, where you try to make everyone happy. When discussing her Supreme Court managerial style, she told a podcaster that deciding how to run chambers with clerks and aides was a bit like parenting. Her impulse to analogize work and home life is also evident in her written decisions. In a recent statutory interpretation case, Barrett wrote a separate concurrence in which she purported to illuminate the statute’s text with an elaborate example that involved giving directions to … a nanny. These sorts of examples could be multiplied. It’s as if Barrett justifies her presence in public life—and claims her authority to be a judge—because she is a wife and a mother.

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Barrett’s arguments on substantive matters are especially weak when she writes about the Supreme Court’s “shadow docket” (also known as the emergency or interim docket). The “shadow docket” refers to the orders and decisions the court renders without the benefit of full briefing and oral arguments, and which the justices occasionally release without any opinion or explanation at all. The shadow docket has been the vehicle through which the Trump administration has obtained the court’s permission to implement myriad policies that lower courts have declared illegal. On the shadow docket, the administration requests stays of lower court rulings blocking administration policies; when the Supreme Court grants the stay, the administration is free to implement the challenged policy as if the lower court ruling did not exist at all. That is how the Supreme Court has allowed the administration to deploy roving immigration patrols that engage in racial profiling, to withhold almost one billion dollars in medical research grants, to fire multiple officials without cause and in violation of federal law, to summarily expel people to third countries (i.e., not the person’s country of origin) where they may face risks of torture or death, to gut the Department of Education without congressional approval, to engage in mass layoffs and restructuring of federal agencies, and more.

In part because the shadow docket has been the principal site of the court’s engagement with the Trump administration, it has produced rulings with sharp partisan divisions. By the end of the most recent Supreme Court term, the Trump administration had won more than 20 stay applications on the shadow docket and at one point was on an 18-case winning streak (even more if you count partial wins). Other numbers paint a similarly stark picture of what is going on. The Trump administration has enjoyed an 84 percent success rate on the shadow docket, whereas the Biden administration barely cleared 50 percent. Justice Samuel Alito has voted for the Trump administration in 95 percent of the applications, yet he voted with the Biden administration in less than 20 percent. Barrett has voted with the Trump administration in 79 percent of the applications and for the Biden administration in merely 53 percent.

These statistics make Barrett’s rote invocations of unanimity and agreement at the court seem borderline inane. Sure, the justices aren’t bitterly divided on questions such as when amending a complaint means a case can’t be taken from state to federal court, or when voluntarily dismissing a case constitutes a final proceeding under the Federal Rules of Civil Procedure, or on the scope of damages liability under the Lanham Act (relating to trademark infringement), or on pleading standards in Employment Retirement Income Security Act cases. This is not to say that these issues aren’t important, but those cases don’t involve deeply partisan ideological divisions. They aren’t the cases that engage the most profound questions about the future of our constitutional democracy—such as whether the president can violate a bunch of laws with seeming impunity.

In Listening to the Law, Barrett labors to defend the court’s shadow docket practices, and the result borders on laughable. She writes: “As long as litigants continue filing emergency applications, the Court must continue deciding them.” Fair enough, but nothing requires the court to grant the applications, including the many in which the Trump administration requests permission to implement lawless policies. And Barrett’s attempt to justify the court’s frequent practice of saying nothing when it grants stay applications raises serious questions. “Committing the Court’s reasoning to print risks hardening what should be tentative into something more definite,” she asserts. But that’s an argument for just applying settled law, rather than radically upending legal doctrine or disrupting the status quo, which is what this Supreme Court has persistently done.

Federal courts of appeal, by contrast, manage to offer pages of reasoning on these stay applications. If the Supreme Court isn’t sure why the lower court got a decision wrong or why an administration policy is lawful, then perhaps it shouldn’t grant the administration emergency relief from a lower court ruling. After all, to obtain a stay, the party requesting it is supposed to make “a strong showing that he is likely to succeed on the merits.” If there is so much uncertainty and so little clarity about the law, then it seems likely that the Trump administration hasn’t made such a strong showing. Unless, of course, the unspoken rule is that this administration always (or almost always) wins. (In a recent dissent from a shadow docket order, Justice Ketanji Brown Jackson memorably described the court’s decision-making as “Calvinball jurisprudence with a twist”—while in Calvinball “there are no fixed rules,” she wrote, at the court, there is one: “[T]his Administration always wins.”)

Early in Listening to the Law, Barrett writes that she “hugged” a family member because she was so grateful they had actually read the Supreme Court’s opinion overruling the 1973 decision in Roe v. Wade (which Barrett had joined). Barrett thinks this reading is fundamental and often “advise[s] people to read the Court’s opinions, but […] doubt[s] many people—including lawyers—take [her] up on it.” The implication is clear—the court’s plummeting approval ratings are the fault of those who don’t bother to read the court’s opinions. Yet Barrett has repeatedly joined a majority that has granted a slew of stay applications that provide no explanations whatsoever. Elsewhere in the book, Barrett even mounts a tepid defense of “deliberate[ly]” including “cryptic language” in opinions, “glossing over issues” in cases, or fashioning decisions that “fai[l] to resolve fairly obvious points.” So, even in those cases where the justices do deign to release written opinions, readers might find them woefully incomplete or unpersuasive.

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Barrett’s defense of her preferred method of constitutional interpretation—originalism—is fine for what it is: a standard regurgitation of explanations and defenses. There accordingly isn’t much new to say in response, although Barrett’s own writing provides several reminders of the flaws inherent in the method.

Originalism loosely refers to the idea that the Constitution means what it meant when it was ratified—unless and until the Constitution is formally changed through the amendment process. I say loosely because there are myriad subgenres of originalism. Depending on whom you ask, originalism is the best method of constitutional interpretation because (a) it’s how the law works, (b) it’s a way of constraining judges, or (c) it’s democratic, in part because it constrains judges. (I am omitting the arguments of those who developed the interpretive method in order to advance an ideological agenda—namely, to further social conservatism, traditional family values, and racial hierarchy.)

The book itself reflects the choices that are inevitably part of reconstructing and communicating history; it also reveals how those choices affect whatever (legal) meaning one might try to extract from the (legal) history one assembles. For example, the Supreme Court’s decision to overrule Roe v. Wade resulted in, and will continue to result in, huge burdens and costs to families. Which burdens and costs does Barrett include in her book? The ones that resulted from the public response to the decision—the “protests outside our home” that “were hard for our children.” (Again, her role as a mother vests her with authority to deflect criticism.) Barrett doesn’t mention the costs to another child, Nevaeh Crain, the pregnant teenager who died from sepsis complications after being turned away from multiple emergency rooms in a state with a draconian abortion ban. Nor does she tally the costs to the child of Amber Thurman, the Georgia mother who died as a result of a state’s abortion ban—a hospital denied her an abortion following an incomplete miscarriage. Thurman’s last words to her mother were reportedly “Promise me you’ll take care of my son.”

There are also notable omissions in Barrett’s account of her own story. She quickly buries, in a single clause, the fact that she “spent a few years practicing law in Washington, D.C.,” neglecting to mention that, during this time, she worked as a lawyer for George W. Bush’s presidential campaign and was part of the litigation team that successfully persuaded the Supreme Court to halt the Florida vote count and order the state to certify Bush the winner of Florida’s electoral votes and thus of the contested 2000 election. Bush would go on to name John Roberts and Samuel Alito, the author of the opinion overruling Roe, to the Supreme Court.

Barrett’s descriptions of the Court also display curious omissions. She trots out statistics that purport to show that the Roberts Court overturns precedent less than did the relatively liberal Warren Court. But counting cases where the court “overturns” precedent omits cases where the court simply “abandons” it (a phrase the Roberts Court has used to describe the apparently nonexistent force of another disfavored case from the 1970s), or ghosts it (by neglecting to mention or apply the precedent where it is applicable), or performs one of the myriad other maneuvers the court has used to change the law in plain sight. Take the Supreme Court’s recent affirmative action decision, Students for Fair Admissions v. President and Fellows of Harvard College (2023), which Barrett joined. That case did not formally “overturn” the court’s previous cases blessing affirmative action; instead, the court declared that there was an expiration date for those precedents and that their time had come.

This ideological culling and curating also emerges in Barrett’s account of the Constitution itself. Barrett refers to the original creation and ratification of the document as “the American constitutional moment,” a story she tells for at least 15 pages. Numerous other pages are peppered with quotes from participants in that key event: John Jay (the first chief justice), James Madison, Thomas Paine, John Marshall, Benjamin Franklin, John Adams, Thomas Jefferson, and others. Yet relatively little space is given to another significant moment in constitutional history: Reconstruction, the period of significant constitutional change that reconstituted the country after the Civil War, including through formal amendments that prohibited slavery and guaranteed birthright citizenship. These developments span barely a page in Barrett’s book, and the voices and perspectives of the people who shared Reconstruction’s vision for the country do not get the same kind of attention. Many are not included (although there is a mention of Abraham Lincoln).

The book reveals the additional choices inherent in narrating history and divining what meaning, legal or otherwise, history may have. Barrett recounts (as have many other justices) how federal judges stood firm in the face of massive resistance to school desegregation orders. For her, this is a simple story of “judges who displayed this independent spirit in the face of public anger at their on-the-job choices.” There are other possible takeaways from that history that don’t map quite so neatly onto this stilted effort to depict the court’s modern-day critics as heirs to the segregationists of the 1950s and ’60s. For example, during the desegregation cases, the federal courts were enforcing the civil rights of a group of people who had been historically excluded from the polity. They were not stripping people of color of their civil rights by greenlighting racial profiling, or blessing legislative gerrymandering that locks Black voters out of political power; they were not taking away women’s rights in ways that have contributed to women dying in childbirth.

As Barrett recounts the court’s decision to overrule Roe, she recites the tired trope that Justice Ruth Bader Ginsburg criticized Roe v. Wade, the implication being that she implicitly blessed the court’s decision in Dobbs v. Jackson Women’s Health Organization (2022). But Ginsburg’s criticism of Roe is better understood to reflect the late justice’s belief that constitutional protections for abortion should have been justified under principles of sex equality rather than a right to privacy. Ginsburg also repeatedly argued for a broader constitutional right to abortion than the court would recognize. In fact, the woman’s dying words expressed her hope that Donald Trump would not select the justice to replace her. (He did, and he chose Barrett.) Relying on Ginsburg’s words to justify overruling Roe is an exercise in creative historical license at best, and deliberate obfuscation at worst.

Like most originalists, Barrett insists that the doctrine prioritizes original meaning, not original intent or expected applications. In other words, judges should concern themselves with what the words in the Constitution mean (or at least what they meant when they were ratified), and not with what people at the time thought the words might permit or forbid. It’s this purported distinction that allows Barrett to help herself to the conclusion that the 1798 Sedition Act, which criminalized speech critical of the government, violated the First Amendment. The same feint often grounds originalist defenses of Brown v. Board of Education (1954), the landmark decision that invalidated segregated public schools. Sure, originalists acknowledge, the people who drafted and ratified the Fourteenth Amendment had segregated schools, and yes, those schools were segregated for almost a century after the Fourteenth Amendment was passed. But just look at what the words of the Fourteenth Amendment say—they prohibit the government from “deny[ing] […] equal protection.” It’s not the originalists’ fault that the drafters and ratifiers, and then a bunch of people for nearly a century afterward, apparently couldn’t read or didn’t realize that segregation was unconstitutional!

Yet when it comes to Barrett’s defense of Dobbs, she is mostly content to rest on practices at the time of ratification and after. She argues that the Fourteenth Amendment couldn’t possibly protect a right to abortion because when that amendment was ratified (or at least for some period afterward), many states restricted abortion. But if one can discount these kinds of practices in First Amendment cases and in some Fourteenth Amendment cases, it’s fair to wonder why that same move isn’t available when it comes to abortion.

The book is so immersed in its own world that it reads, at times, like fan service. Much of what Barrett writes is in the register of reassurance, but only for people who think like her.

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The press tour Barrett recently launched for the book is consistent with that judgment. Her initial appearance was an event with Bari Weiss, an anti-woke activist-editorialist who rails against (the Left’s) so-called “cancel culture.” Many other appearances in support of the book have been alongside similarly sympathetic interviewers. Barrett has appeared on Fox News (but not MSNBC/MS NOW); she gave a podcast interview to Sarah Isgur, who served as a spokesperson for the Department of Justice during the first Trump administration; she spoke with CBS News (after CBS settled Trump’s lawsuit against the network and while it was in negotiations to acquire Weiss’s media outlet).

These media rounds suggest that Barrett is immersed in, and coddled by, a partisan ecosystem that rewards people for having right-wing views and saying right-wing things. That was clear from the book itself—at least it was if you were privy to the relevant context that Barrett often omits. Take her discussion of the Affordable Care Act’s near-miss at the Supreme Court, when the court came within a single vote of striking down the entire law in 2012. Barrett writes that there must be limits on what laws Congress can enact under the Constitution or else “even an individual mandate to buy broccoli for health purposes” would “be within Congress’s power.” The idea that the ACA would permit a broccoli mandate was a hypothetical developed and amplified in the right-wing legal blogosphere. From these and other passages, it is clear what company Barrett keeps and what media she digests.

At her book events, Barrett is often asked whether the country is in a constitutional crisis. She always says no, though she often deflects by throwing out that she is not really sure what a constitutional crisis is. In one interview, Barrett suggested the country actually has never been in a constitutional crisis, although it has certainly had its challenges from which it has emerged stronger. That’s one way of describing a civil war in which states literally departed from the Union and the Constitution in order to maintain the institution of slavery.

But Barrett routinely insists that the rule of law is alive and well, as is the Constitution. Never mind that the president, after promising retribution against his enemies, successfully badgered prosecutors into indicting James Comey, the former FBI director who had irritated the president, for a crime Comey didn’t commit; that he ordered his attorney general to prosecute other political rivals for other fake, nonexistent crimes; that a government official jawboned a network into (temporarily) removing a comedian who made a joke at the expense of the president’s political allies; that the president has illegally withheld billions of dollars in federal funds for ideological reasons; that the administration is credibly accused of violating several court orders; that the president’s appointee to head the Department of Health and Human Services is gutting the United States’ medical and health system and promoting vaccine misinformation; that the president has ordered the assassination of people he accused of being drug traffickers without any proof and in the face of contrary evidence; that the president is razing part of the White House, which does not belong to him; that the president is trying to extract a payment of over $200 million from the Department of Justice (and American taxpayers).

Barrett insists that we “listen to the law”—but can she even hear what the law is saying given her disconnect from our current reality? Her failure to acknowledge that reality makes the book seem, however inadvertently, like an effort to burnish an authoritarian regime that is being enabled by a regime-friendly Supreme Court.

The prose is quite good, though.

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Featured image: Shealah Craighead. “President Trump Nominates Judge Amy Coney Barrett for Associate Justice of the U.S. Supreme Court,” September 26, 2020. CC0, whitehouse.gov. Accessed November 14, 2025. Image has been cropped.