Booksology Every season seems to bring us another unnecessary book from a Supreme Court justice, and this fall’s entrant is Amy Coney Barrett’s Listening to the Law. Given that the book reportedly garnered her a $2 million advance, I am begging Congress to increase the justices’ pay so they might be less likely to waste our time.
In Listening to the Law, Barrett ostensibly intends to “weave together three themes: the work of the Court and its justices, the Constitution and its impact, and my own approach to judging.” The final product: a superfluous amalgam of middle school-level history and selective judicial philosophy that reads like a tuneless, 250-page version of “Schoolhouse Rock.” Barrett and her conservative supermajority comrades have spent five years joyfully restructuring American society to their own ends. With this book, she’s on a side quest to pacify readers into thinking that the Supreme Court merely “interprets the law”—nothing to see here.
One of Barrett’s goals seems to center on the public’s purported lack of understanding of what the Supreme Court, and judges more generally, do. Her answer to that question retells the hoary story of “interpreting the law,” exercising judicial review, and carefully evaluating arguments without regard to politics. Barrett’s version of the Court’s operations bears no relation to the reality we all suffer through, in which the Court manipulates its docket and twists its doctrines to decide the cases it wants, when it wants, with the arguments it wants.
Consider Barrett’s description of the “emergency” docket—her euphemism for the shadow docket, in which the Court makes decisions without briefing, oral argument, or meaningful justifications, and then berates lower court judges for not following its non-precedents. Yet this is fine, in her view, because “committing the Court’s reasoning to print risks hardening what should be tentative into something more definite.” Too true—which is why the explosion of “decisions” made on the shadow docket has caused so many problems, including allowing ICE to racially profile in Los Angeles and permitting Trump to fire leaders of independent agencies without cause.
But in Listening to the Law, you’ll get no acknowledgement that the justices have played games with their own standards and selectively interpreted whether not expediting rulings causes irreparable harm. These abstruse legal doctrines anesthetize all but the nerdiest proceduralists, but as Barrett well knows, procedure is where the action really happens.
