The U.S. Supreme Court is arguably one of the most important institutions in the country. But when it comes to understanding how the historic body operates, it can be a bit tricky to navigate.
How do the justices decide which cases to take up? What happens during the court’s weekly conferences? And what does the opinion-writing process look like?
Those are the types of questions Associate Justice Amy Coney Barrett answers in her new book, Listening to the Law: Reflections on the Court and Constitution. Released last week, the literary work offers Americans a look behind the doors of the nation’s highest court to “see how the sausage is made” regarding the biggest legal issues that come before the justices.
While the judiciary and law are vast subject areas with numerous complexities, Barrett does an exceptionally good job at breaking them down in simplistic terms so that the average American can easily understand them. Not only does she effectively explain the appropriate role of a judge, but also the different orthodoxies by which judges approach matters before their courts.
This includes detailed explanations of originalism and living constitutionalism. While the former favors adhering to the original intent of the constitutional provision or statute in question, the latter involves interpreting such provisions with the view that the Constitution and statutes’ meanings evolve over time to conform with modern issues.
Detailing her preference for originalist jurisprudence, Barrett writes, “I’m not an originalist because I think that history yields easy answers or prevents bad judging. I’m an originalist because I think that it’s the right way to think about law.”
In addition to its extensive examination of the law, the book also provides a timely exploration of the Supreme Court’s “emergency docket” and how federal cases make their way to the nation’s highest court.
Since taking office, President Trump and his administration have faced a flurry of leftist-backed lawfare seeking to use the judiciary to grind their newly enacted policies to a halt. Overreaching injunctions on these policies issued by (predominantly Democrat-appointed) lower court judges have effectively left the administration little choice but to file emergency applications for temporary relief at the Supreme Court.
As Barrett explains, there are two tracks federal cases take through the federal judiciary to get to SCOTUS. The first is called the “merits docket,” in which the merits of any case are fully litigated and ruled on by the district and appeals courts. At that point, one of the parties to the case can petition the Supreme Court to take up and render a judgement on the matter — something the justices may or may not decide to do.
The other avenue is the “emergency” or “interim” docket, in which, as Barrett describes, “parties ask the [Supreme] Court to immediately ‘stay’ (the legal term for pause) the effect of a lower court’s decision.” The justice writes, “The gist of an emergency application is this: ‘I can’t wait for the normal process to play out because the decision below is both wrong and incredibly harmful to me.’”
These emergency docket decisions, the Trump appointee adds, are not a final verdict on the merits of the case, but merely a “preliminary judgement about the likelihood that the applicant’s argument will succeed.”
While legacy media have attempted to paint the Supreme Court’s granting of temporary relief for the Trump administration in recent “emergency docket” cases as evidence that the court is nothing but a rubber stamp for the president, Barrett undercuts that talking point by highlighting the numerous criteria applicants must meet in order to receive temporary relief. She further notes how the justices are only reacting to matters brought before them and “can only resolve disputes that litigants choose to bring; [they] can’t volunteer answers to questions that no one has asked.”
“As long as litigants continue filing emergency applications, the Court must continue deciding them,” Barrett writes. “But the judicial system functions better when litigants and lawyers have the opportunity to fully explain their positions in their briefs, provide the Court the benefit of oral argument, and offer the Court the opportunity to make a deliberative and well-reasoned decision in consultation with one another. The Court does its best to ensure that most cases get the benefit of that process.”
Whether a legal novice or pro, any reader can pick up Listening to the Law and easily come away with a baseline understanding of how the courts operate, what goes into judicial decisions, and what the intended role of a judge is. And with the Supreme Court and judiciary becoming more newsworthy by the week, it is the perfect book for the perfect time.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
