Judges Amy Coney Barrett and Amul Thapar: ND Constitutional Studies Conversations - March 28, 2019

so one of the uh best parts of the program is when we bring in uh visiting speakers like uh judge the four who spoke this afternoon we get together with our tokyo fellows and just have a conversation um and so i'm delighted that fellas can make it and that you could join us as well we have a tradition in the program which is we always have a student introduce our visitors so uh soren has a senior smart campaign from san diego so the honorable amy coney barrett is a circuit judge of the united states court of appeals for the seventh circuit she is a notre dame law school alumna and has taught here as a member of the law school's faculty since 2002. judge barrett teaches and researches in the area of federal courts constitutional law and statutory interpretation our second guest today the honorable world court is a circuit judge of the united states court of appeals for the sixth circuit he is both a former district judge and former u.s attorney for the eastern district of kentucky both judges with us today are trailblazers judge the par was the first asian article 3 judge in u.s history and while judge barrett is certainly not the first female appellate court judge she certainly must be the first female judge with seven children it is my student esteemed privilege to thank judge barrett and judge the poor for joining us today please join me in welcoming again as i said uh the uh the toefl program the constitutional studies program which i run we're focused on our undergraduates and uh it's really the best part of the program just to have a conversation with with the students so feel free to i'll ask you some questions i'll ask you some questions you can ask with another questions you know whatever we want to talk about judge sappar gave a lecture this afternoon at the law school about religious liberty and originalism uh tell us about originalism uh are all judges originalists do you have to do you have to be an originalist to be to be a judge what is originalism uh what are its strengths whatever its weaknesses so you don't have to be an originalist to be a judge i think we both think of ourselves as originalists um so the way i the easiest way to explain it is as i talk to you all you're interpreting my words and you're giving them the meaning they have today not the meaning they had 30 years ago and not the meaning they're going to have 30 years from now but the meaning today same thing with letters recipes legal documents if you want to understand what happened at the time you have to interpret them the words at the using the meaning of the time and so that's what originalists do and it's wonderful to have colleagues who are originalists uh judge barrett or amy just wrote an opinion that was fabulous i told her that and it was about the second amendment and it was a hard issue it was about whether certain felons can have a second amendment right or whether that right is extinguished and you can see as you read this opinion first it's very well written and i recommend it to everyone but you can see that amy worked through to get what she believed the original meaning compelled not what she wanted but what the meaning compelled and that's the beauty of ritualism that you have no pre-ordained few so at a time when some consider the second amendment kind of under attack she didn't treat it as an orphan as some have done rather she understood what justice thomas has said that it's a privilege of citizenship and as a privilege of citizenship she understood she had to go through the history to figure this out before she took or effectively the courts took the right away right the second right the second amendment fundamental right away from the people and she worked through it and the nice thing about originalism is we all show our work so as you read it she cites her source material she talks about it how does that help well now the next judge comes down the road me and say i've got a case like that now i can just pick up her opinion i can work through the sources i can check her work and if she's right then i'm compelled to rule that way and so whereas what you see in the courts today is some judges non-originalists will say well what's my policy preference and that's why they are treating it as a constitutional orphan that's just one example of originalism but the point is is to go back to the original meaning and figure out what the american people agreed to when they gave the government permission to run the country i'm going to add one thing to amul's excellent description of originalism is to say all judges even if they're non-originalists consider the original meaning that's kind of what we consider a standard modality of constitutional interpretation so even judges who consider themselves pragmatists like say justice breyer takes into account what the original meaning of the document was the difference between originalists and non-originalists is that for originalists where the determinant meaning where the meaning is determinate where it can be identified it's controlling it's not just a data point for those who are not originalists there are other factors in the mix that might trump the original meaning surpass it i think there are also disputes even among originalists but certainly between originalists and non-originalists about what level of generality the text should be written read at and the higher a level of generality read text at then the less determinant you know the meaning is and so the more room there is for other kinds of factors to kind of fill in the gaps and you would both consider yourself originalist broadly speaking yes what is it that led you to find originalism compelling you know when i entered law school i didn't have a firm sense of of what i was um but as i read cases and as i um took constitutional law that's i came to believe that that was clearly the right way to approach it it struck me as the most democratically legitimate even as a law student and then certainly as i went on to become a law clerk and a practicing lawyer and a professor and now a judge i think that's true i mean what claim does the law have to our obedience you know except for the fact that it was enacted but became a law in the case of the constitution ratified by people who then through that act of ratification made it a law and obviously we didn't participate in that act of ratification you know we weren't around and you know if many of us had been around and the late 18th century wouldn't have been permitted to participate anyway but in a continuing society you know one of the premises of a continuing society is that each generation takes the law as they find it and it's democratically legitimate because we have the power to change it if we want to if we had no power to amend the constitution or to make change then this whole dead hand of the past argument would have more force but you know you can't reinvent the wheel you know each each new generation each day is not a new day you can't have a continuing society and so if we're going to have a democratically legitimate society you don't want to mull an eye you know just imposing our will on you um i think the original meaning is is really kind of clearly the way to go what about you yeah i agree wholeheartedly with everything amy just said the things i would add to it and randy barnett says this and i stole it from him is it's the document that governs those who govern us so when people say well i didn't participate in that why should i be bound by it you're not amy and i are because we take an oath to this constitution and the words specifically are this constitution and then it says in the document that this constitution is supreme and so and we're governed by it and what that means is we're governed by the words and concepts and i agree with amy 100 the generalities and other things you have to think about but we're governed by the words and concepts include included in that constitution not one we choose and what i say a different way than amy's saying it some of you have heard me say it is you don't want to be governed by our values till you ask our kids what that's like right and so and i think most of you would come back and say no way and so it's the document that governs those that govern us and if you believe that and i take an oath to it then i'm governed by it the other thing about the dead hand of the past which a lot of people mention that comes that's a quote from thomas jefferson what they don't include is the response by james madison and james madison said no we they aren't governed by the dead hand of the past it's a debt against the living meaning everything all of our toils are what we're passing on to you this is the benefit of our our hard work and there's a mechanism to amend it there's something else it's called legislation and justice scalia always used to say if you don't like it go convince your neighbor go start the process of either legislation or amendment but don't come to us because sometimes you might not like our values and courts have made horrible mistakes in the past dred scott plessy versus ferguson korematsu i mean i can i can go down the list and so just remember that we're not perfect either and so the system works if people would adhere to it and i do agree that everyone starts in principle with the original meaning but i think they quickly some quickly move off of it and impose their values on society and others stay true to it do you have to does every judge have a judicial philosophy some expressly estee any judicial philosophy so um judge wilkinson on the fourth circuit you know has said no judicial philosophy and judge posner who was on the seventh circuit is is now retired um similarly was kind of against against philosophy against having any judicial philosophy i think that's a mistake i think not to have a philosophy is a philosophy really you can call it not a philosophy but if your approach is you know i have a grab bag approach which just kind of pulls you know pulls different interpretive tools to do what makes sense then that is your theory i think that one function of confirmation hearings is to elicit what that judges or that nominee and that context theory would be because i think you know the senate's role in advice and consent i think that's something that the senate you know all the questions about specific cases the senators know that nominees can't answer those questions but questions about what your judicial philosophy is should absolutely be on the table because that's what the senators need to know to fulfill their constitutional duty and that's what their constituents that's what the american people need to know is if as a amul says you know those who are making decisions you know you're the governors of the governed you have a right to know what yardstick they're using to make those decisions and both of you have used the word duty so you you tie your the commitment to originalism really to a commitment to constitutional duty or constitutional fidelity absolutely if you i mean and i agree that everyone has a philosophy maybe not expressly my philosophy may be a grab bag philosophy like amy just described and i like that description but that is a philosophy judges may have what we believe or what i believe in amy and i agree on this i believe is that the oath has consequence and that you have to figure out what that means you have an obligation and i agree with amy you have an obligation to answer if someone asks what is your philosophy at a hearing i want to explain and defend all of our colleagues in saying why we don't say because you may hear it and think well why can't they answer whether that's rightly or wrongly decided as an originalist it's really hard to do that because you have to do the work remember how i talked about amy showing her work you have to do the work you have to work through it those of you who heard my speech today heard a speech of someone that's not 100 sure yet right and what did i say when someone pushed by the professor and others is i would have to go back and really do the work and i started that process but you can't answer it the other thing is it's not fair to the advocates if you prejudge everything so just because i think something doesn't mean when i do the research i will be right and i think we both found that in being a judge you come you read the briefs you think oh this is easy this is the answer you get to argument and all of a sudden you're like oh my gosh it's a lot harder than i thought and then you go back and you tell your clerks okay get me this source this source this source i want to figure this out so are you going back and sort of reading original documents from the founding era or from the uh 19th century i think it depends on the question yeah so i had for the second amendment case that amul was talking about i had to because there's not a lot of precedent out there because the supreme court's heller decision which held that the second amendment protects an individual right to bear arms is relatively recent but from mull and i at the court of appeals level so much of our work is dictated by precedent either from the supreme court or from our own court that i have not had many occasions outside of this second amendment opinion myself to really delve into the original sources so that case was very difficult but the fun part of it was you know that i got to do some of that have you had yeah so very my answer is almost identical and when but on the district court and the court of appeals what i have done is done the research when presented with the question and then published my work and said boy here's what the supreme court said so i did it in the fourth amendment context and i took the opportunity to explain what search means in the fourth amendment context and go back and read original sources and explain it in opinion and then say but the supreme court has a different view and then i applied the supreme court view to the case at hand i was dissenting in part and concurring in part so it gave me the liberty to do both and say here's what the answer would be under the original meaning and here's what the answer is today under precedent but yes we have an obligation to apply the precedent faithfully we've taken it's that is also included in our oath so if if you believe the original meeting dictates answer a the supreme court president says answer b you gotta go with b gotta go with b yeah yeah so let's say let's go back to the second amendment just because we're talking about it and what amy talked about was the fundamental right right to bear arms let's say amy and i both agree that her decision's right now she was in the descent there but it was an original question before her let's say the supreme court comes out differently even if we believe they're wrong we are bound to follow that no matter what even though i'm on the record you know saying otherwise myself then after that you know i'm found so the next time you heard that is the if the supreme court uh decided the other way that you did you you could effectively end up writing against your own opinion i will have to write against my own opinion even in my own court i mean if this question i was in the descent it was a panel decision 2-1 if a similar question comes up in the seventh circuit i will decide it consistent with the way the majority did and not with my own view that's my obligation and both of us believe that that's encompassed within not only our oath but the rule of law right look we give it our best shot we explain it in dissent but you have to respect your colleagues too and the fact that the way the rule of law works is once there's a decision we have to follow that can't we have free for all right yeah otherwise it's so panel determinative which it can't be it's not fair to the and let me let me explain why and let me explain this maybe leads into a little bit of textualism and but i also have a different view than judge posner who amy brought up on textualism and i've written about it and my view is you have to follow the text and interpret it and same thing very consistent but it also provides certainty to society and so do our decisions so that now you can operate in the confines of that and if judges keep changing then the american citizens can't operate in a society where they understand it and if we say we're going to follow the text then you can read the text and make a determination and lawyers can give you advice and as long as we don't change what the text is which we aren't entitled to do then it provides consistency it provides an intelligible principle and all those other things you mentioned becoming interested in originalism or finding it compelling in law school how many how many seniors do we have are any of you off to law school next year within the next three or four years several of you probably won't be going to law school yeah maybe what led you to to law school how did you become interested in the law um i debated so when i was in your shoes when i was a senior i had majored in english literature and minored in french and i had debated about going on to get a phd in english literature and becoming a university professor so i was choosing between doing that and going to law school and i took both the gre and the lsat and you know i can remember sitting in my dorm room with pro con lists and ultimately i chose law school because i felt like it offered some of the same things that i loved about english um reading and writing um although you know the the material is not always as interesting right as as my english literature um but i i liked that law in a very direct way had an impact on society and our social structures and i felt like working in the law not that english professors don't serve a very valuable function and and i'm i think beauty and literature and reading are crucial so i don't want to be heard to say otherwise but i felt like my own set of inclinations and talents and interests led me to want to do law just because of its role in shaping society and social impact and stability did you go straight from undergrad to law i did yeah i wonder what you just talked i went straight through too i've told some of the students i wish i would have done differently and taken a couple years it was my one chance and so i definitely advise that um but i chose law school for very similar reasons although it's maybe a reflection of my parents what i did in college and then ultimately law school and so my day my parents are immigrants and maybe i'll get into that more you'll see i refer to my parents a lot my dad by trade was an engineer who opened up or bought into a small business and is a small business owner my mom was a social worker and so i had both the capitalistic side of me and the kind of more philanthropic uh save society side of me and they came from my parents and so in college i majored in economics which is in the school of management at boston college which is the practical side of me and then i majored in philosophy which kind of like how am i going to save the world how am i going to figure out philosophy those types of things and it was always a tug in my life as kind of what to do and and during that time my friends talk me and i talk about this when you ask me for advice my friends talked me into taking a business law course and i took the business law course and i loved it and i said this is philosophy kind of on steroids right and so i thought hey my a couple of my friends were going to law school that's why they took the class and i'm like that's what i'm going to do i'm going to go to law school and so i decided to go to law school and i thought i can make money and do good i can be both my mom and my dad all in one and so it was a unique opportunity to do that uh my wife would say i kind of forfeited the making money when i stayed on the public service side but we can talk about that but do you enjoy being a judge i do it's been a switch so as soren said you know i'd been on the faculty at notre dame um for 16 years so i spent the bulk of my career as a law professor and you know the longer that you do something the better you are at it i mean it was you know i i knew how to teach i was an established scholar so you know and jessie and i have seven kids and so everything's always a delicate balance and we had our schedule down with my law school job so any change any switch you know is going to be work um you know just just in making the adjustment and getting on the learning curve and because amul came from the district court of the court of appeals he he had you know gosh it took me a long time just to get the insurance and all of the benefits stuff like all the practical things um flipped over but i do like it so i've been working really really hard in the last two years just because of the learning curve you know i've had everything from you know technological problems and computers not working in chambers to just figuring out how my court does things i taught public law which is mostly constitutional law i also taught civil procedure evidence you know a lot of the nitty gritty litigation classes but i did not and did not practice say immigration or social security i knew my way around criminal law from my time as a law clerk but i didn't practice it so i'm getting exposed to a lot of areas of law that i didn't have substantive experience in before and it's really fun i mean i really like the opportunity to see other areas of the law learn new things i also you know i liked very much and planned to continue once i have a little bit more time publishing scholarly articles but writing judicial opinions the second amendment became a side um i like now i mean scholarship is often you know a multi-year process to produce something and for judicial opinions the writing is entirely different you know you're getting things out much more quickly and it's much more discreet and it matters a lot to the litigants it it's i i feel like sometimes as a law professor you feel like you send out your article to the law reviews and no one ever reads it but now i feel like when i'm writing i'm doing something that's really a service to the parties before the case it's a service to those who need to know what the law is for the sake of stability and i want to do a really good job so that as lawyers who are reading my opinions to advise their clients later read it that it will be clear and will establish a clear rule of law so i really love those aspects of the job you know even though i gotta say i'm not getting a lot of sleep right now yeah i love what i do and i've been doing it for a while now because i was a district judge for a long time and i've been on the court of appeals for a couple years it for me it's so everything amy said it's especially important that we get out opinions that are hopefully thoughtful readable is important to me that the parties not the lawyers the parties can read it and understand it because it's their litigation and it matters to them and you've got to remember a lot of times in this country we talk about the bigger principles and we like to think about the bigger principles you always have parties in front of you and that case matters to them and so why do i love being a judge so let me walk back just a second and talk about when i went to law school so now you'll hear again about my parents my dad said why would you go to grad school to become an hourly employee right because we all work by the hour and this is what a businessman thinks about like who wants to work by the hour and i thought that was interesting and so but the one thing i learned from two parents that were immigrants that came over from india was about the greatness of this country and one of the things i'm going to encourage amy to do because it's my favorite thing to do it's a naturalization and in the naturalization it's the only time you go to court and everyone leaves happy okay but there's something else about it i was a kid in those ceremonies so when kids are screaming i always say don't worry about your kids i was one of those kids and i've been appointed by the president now three times to three different jobs i mean think about that you can be the child of immigrants in this country and you can do anything and so i feel like for a family that's been so rewarded by the american people and by this country it's an opportunity to give back and that is so valuable to me to my family and to my parents and i called my dad when i got appointed to the federal bench and i said i don't have an hourly job anymore no more times [Laughter] your parents were born in in india in india and you were born here i was born in detroit in detroit yeah yes yeah tell us a little bit about uh growing up you you must have been one of you're the only indian in your high school the i was at the time i started i was the only one in my junior high in high school it's a wonderful place toledo ohio i loved growing up there i have some of the greatest friends from there that everyone treated me really well that's been pretty consistent throughout my life people as an aside people ask me about when i was a district judge in eastern kentucky and people say oh the people are this or the people are that i said no they're not they said well you're a judge they're going to treat you differently i said i'm not a judge when i'm driving in shorts and a t-shirt to a courthouse in eastern kentucky and i go into a restaurant or gas station i'm an indian looking guy that's going in and they treat me like gold they don't know i'm a judge i don't unless you all tell me otherwise i i don't think i look like a judge i think judges are the gray-haired and so um but growing up it was just it was a wonderful community to grow up in i was different and i realized it and early on maybe the kids were like you know who's this guy what's he all about and i remember you know i was kind of awkward like a lot of young kids are but i hopefully grew out of it uh and i i loved it it was a wonderful community to grow up in and the people are fabulous okay judge mary you mentioned seven kids yes yes too many of your colleagues that have seven kids and they're all at home right now they are all at home our oldest is a senior so as of next year we'll be down to six at home only six um yes so we we have seven children five of them are biological and then we have a son and daughter that we adopted from haiti so it's a very full house i was one of seven growing up and i loved having a big family so i always wanted to have a big family and my husband was an only child and had been very lonely growing up so he too wanted a big family so yeah i i'm going to anticipate this to these questions how do you do everything um so it's funny when jesse and i got married i didn't foresee and you can't i mean you can't see what the future is going to look like but i had no idea what traits he had that would enable the life that we have now to be possible um he my mom didn't work she stayed home with kids my my my dad was a lawyer and so that was what i had seen that was the model that i had seen most up close was a stay-at-home mom so i didn't have a model in my mind i mean i had certainly seen women who were working some of my my friends mothers worked so i had seen it but you know what you really see the model that you know best is the home that you grow up in so i didn't have a preconceived idea of how it would look and as it unfolded you know as we had additional children as we decided to adopt you know our adoption of john peter was a little spur of the moment um as things unfolded jesse really stepped up we didn't really have a conversation like hey we're going to be locked in like you're going to do x and i'm going to do y we just each shifted and assumed different responsibilities as it made sense so at some point jesse started doing most of the cooking and grocery shopping and that's great at first i kind of resisted it because i liked it and i still do enjoy cooking but he just said you know what i think this will make your life less stressful i'm gonna take this on so he does that um you know we live in south bend where you know traffic is light you know their south bend has its pluses and it's minuses but you know the the commuting times are pretty good so he does most of the driving the carpools and the kids doctors appointments um and then we'll switch you know when he gets busy at work now he has changed jobs and he's traveling more so then i i'm doing more of that when he's gone so i think the thing that's made it possible is it really being a team effort and having a husband who has been you know willing to be a complete all-in partner and you know doing all the things around the house and child-bearing and and everything okay i have to follow up the spur of the moment adoption so um we adopted our daughter vivian we have our oldest daughter emma was a senior and then we had our daughter tess who is now a freshman in high school and we adopted our daughter vivian who is tess's age there are fraternal twins we like to call them they're both freshmen um we always wanted to adopt another we thought we had after having been to haiti we really had a desire to do that we thought it would be good for our entire family to not have vivian be the only adopted child we thought it would be good for vivian to also have another sibling and we just felt very moved to do that after visiting so we had started the process for john peter but for a variety of reasons it had fallen apart they told us that it wasn't going to happen we had then subsequently had our son liam who was a total handful and it would have overwhelmed me to think about adopting at that point so the part of me was relieved because i thought there's no way we could handle it so the paperwork was just languishing and they had said he wasn't going to come home and then the earthquake in haiti happened and in december i had said we ought to just close the book on this they've told us that it's not going to happen so why have this loose end it had been dragging on for two or three years at this point so we had mentally and emotionally moved on and then the earthquake happened and one of the paperwork snafus that had held it up was on the united states side and they lifted that requirement and said any children who had adoptions in process could leave and they called us and said would you still be willing to take him this was early january and we said yes and interestingly this was right around the time that kenan's family was getting ready to go to saudi arabia and i had been on saturday night to a farewell party for her family and i had just had one drink and the next morning just didn't feel well and i thought that's weird i wonder you know what was that it turned out our daughter juliette was on the way and we had to make the decision i my husband was on the phone with the adoption agency trying to figure out the details of going to pick up john peter in orlando and i said um hey guess what we can have a baby in september so we had a very compressed amount of time to decide if we were going to go through with it i'm going to go get john peter from haiti but that's not that wasn't really a decision i mean like we were going to say oh never mind you know but we had to take a step back and think oh my gosh we have a nine month old you know three days ago we thought our family was probably complete at four you know and we have a nine month old now we've just kind of agreed to go to haiti this week and pick up john peter and by the way you know juliet juliet will be joining us in september so it was and i did not get a maternity leave when john peter came so it was a very um intense time and so jesse really that was actually the time when i think he took over all the grocery shopping and you know the cooking at that point he really kind of stepped up and said okay you are totally stressed out you know i'm gonna do a lot of the stuff so it wasn't it was very intense but i wouldn't do it any other way and this was january and i can distinctly remember throwing on my you know long winter heavy coat walking up to the cemetery and sitting on one of the benches and just thinking two things um well if life's really hard at least it's short looking at all the graves and then i thought but in context when you think about the value of people and the value of life and what's really most important like what you can pour yourself into that raising children and bringing john peter home were the things of value you know the greatest value that i could do right then you know rather than you know even teaching or being a law professor you know which i was at the time that that was really what was the most important and you know i feel like a lot of my decisions and a lot of my moments have happened at notre dame often in that graveyard actually just kind of i think walking when i walk up to campus and walk past her to walk through it i think it crystallizes your thinking what year was the adoption oh gosh um it was 2 000 and i've got to think how old juliette is so juliet will be nine so 2010. and by that john page is not your youngest and juliet's not yours no benjamin is so yeah yeah then benjamin came after juliet and benjamin has down syndrome so if we thought things were crazy with that um rapid family expansion with the kind of the triplets coming up benjamin was born benjamin is now seven almost no he's six almost seven it'll be seven in a couple weeks um and that has been i think it's probably the thing in my life that's helped me to grow the most and that's pushed me the most is having a child with special needs so since benjamin was born i've met some people who had you you very quick it's a pretty small community of people with children with down syndrome and you kind of get to know south bend is a relatively small town so i kind of know most of them and there are some people who have had received the news of the diagnosis and completely taken it in stride but that was not jesse in my experience it was very difficult for us and in some respects still is we weren't expecting it and we didn't know what it would mean and it has been challenging i mean there are definitely hard things about it he's still not really he can understand a lot but he's not speaking very much every child with downs kind of develops at their own pace so it's not clear you know but i think i've learned so many lessons about myself about what's important in life and when i think about benjamin um so every night before bed john peter liam and julia our three youngest have to say one thing they're grateful for and i would say that six out of seven nights they all say benjamin um i just think there's there are difficulties i mean i think there are obvious difficulties right and the therapies that we have to do and and trying to teach him to communicate things that are really hard but i think that the effect that it has on my other children i think what it teaches jesse and me about unselfless love it's really valuable so um i gave a talk a couple months ago and i chose as my theme the obstacle in your path is your path becomes your path and i think sometimes we see things that are very difficult or that are burdens and you know benjamin's diagnosis definitely derailed us off what we thought life was going to look like what we thought his life was going to look like but in a way that we can't really understand or appreciate but we see unfold every day this is part of it will be the most important thing that we do probably i mean it's it's it's difficult but this is you know this is our path yeah this is our path i we should open up uh the florida questions from from anyone and any anything you want to talk about don't be shy it'll be boring if you don't ask questions well first i want to thank you for coming in everything [Music] my question is if a judge is committed to combating judicial activism that is to say refusing to insert their own personal policy opinions into the decision are they in a sense stuck with these uh precedents that have been tainted by decisions that did insert uh policy preferences is there anything done to reverse that so so first great question and it's a very thoughtful question one candidly i hadn't really thought deeply about before but one thing i do is i will immediately if i recognize that i'm not afraid to write alone so write the opinion or join the opinion but then write alone to point out the problems with the prior precedent either to encourage my own court to revisit it on bonk or for the supreme court and i feel that's part of my judicial duty different judges have different perspectives on this but i was willing even at the district court level to point out where there were errors in precedent especially when it affects individual liberty and things like that where people's liberties being taken away i think it's important that we do that if we have drifted from the meaning of the text and i think it falls within our obligation but like i said i respect my colleagues who feel like no we're strictly bound by it we shouldn't criticize our prior precedent i try to do it respectfully but i do it nonetheless because i feel like it's part and parcel of my responsibility so you can be bound by president but still criticize or point out what you think are the problems with it yes and i i'm not shy about that i want to add one related thing and i don't think this is something that i'm would disagree with i want to be careful when i say you know i'm committed to originalism and i don't want to insert my policy preferences into the law that i don't want to give the impression that i think oh originalists would be immune from that so i think that every judge has to really guard against it so one thing that i do actually i was just doing it is i was thinking about a case resolving a case today i try to put myself in the shoes of the party that i'm going to rule against and so as i'm writing the opinion or as i'm trying to decide how i'm going to vote at conference i imagine that it was my daughter or me or my husband that was in that situation and think could i still reach the same result not as a matter of emotion because obviously i would want to reach a different result if it was my daughter or me or my husband but could i respect the reasoning and am i really doing it in a way that smokes out any kind of policy impulse that i have to go the other way and of course that's not going to be perfect either judges are humans and they're infallible but i think everybody has to come up with mechanisms like that like to try to guard against you know you imposing your policy views on the law and you know justice clay used to say and it's right and am i you know almost two years on the bench i've already had this happen if you don't write decisions that you disagree with the results not the reasoning if you don't reach results that you don't like you're not a very good judge you're doing something wrong because you shouldn't like the result in every case you decide yeah that was the theme of your talk earlier today and he not only said you're not a very good judge you're not being a judge at all if all you're doing is reaching the policy preferences you like so we all have checks on ourselves because amy's right that we're humans and you can engage and protect you can either engage in the original enterprise and still allow your policy preferences to infect your decision making or you can not engage and allow it and so another thing i do and i agree i love amy's theory of let's put myself in the losing party's shoes the other thing i do is if i do have a bias i'm not afraid of it i tell my law clerks and i say okay your one responsibility is not to let my bias interfere in this decision so you law clerk are tasked with that so when i send you an opinion you better make sure there's no way you better check it and we have a multiple layer process to check our opinions to make sure my biases don't get involved and i remember a case specifically i worked with one of my greatest law clerks and she was phenomenal and i told her i said it was a case involving fraternities and i said i don't like fraternities okay that's just i'm happy to say that at notre dame where they don't exist but i say it publicly and i just don't like what goes on i don't like what i read about him and i told her i will you know my bias is against this you have to check that bias and she literally would strike she said judge you don't like adverbs and here you've got an adverb or things i was doing in the opinion or even the results she contested on a certain part of the opinion that i was reaching the wrong result and she was right and so it was interesting to work through it with her and see that and then have the other law clerks check and so you've got multiple layers if you'll take advantage of them the one thing that's most important i can't stress it enough for an orange list is to be humble and recognize our fallibility but also recognize that our instincts might be wrong it's hard work to do it but if you believe that and you believe in the greatness of the country and the greatness of the american people which is what especially justice scalia's originalism as you heard me talk about earlier today is all about deference to democracy right what did justice scalia say some of you heard it i'd rather if it's a question of policy i'd rather have nine people randomly chosen from the phone book than the nine justices decided what else should we talk about um joshua i know you clerked for justice league and also in the lower courts i'm not familiar for the eu but i was guessing i was wondering if you could speak to your experience as law clerks and how that impacted your career and discernment as a lawyer and then as a judge yeah i mean i i guess i'll i'll speak to the mentoring that i received from judge silverman on the dc circuit and then justice scalia they're both great writers they're both originalists they're both textualists and so they really shaped how i think about the law justice scalia i mean working for justice scalia is quite intimidating um because he was brilliant and he always i mean he would just walk in and ask you questions and you had to be ready at any time even if it wasn't your case so you had to always be on your toes and the way that it works when you're clerking is law clerks write first drafts of opinions so imagine how it feels to hand a draft of an opinion to justice scalia you know who's known to be one of the best writers you know um in the court's history so it really motivated you to be a really good writer um so i learned a lot and then i learned a lot about how to mentor i mean i don't know if i'm implementing it perfectly but i i saw the importance of it because they did it for me um so it was an invaluable experience did you ever get a joke in that he included a scalia where are you responsible for any good scalia barbs or anything like that his barbs are so one of a kind that some of the opinions that i wrote you know i would have something that i thought was kind of funny but then he would just take it and he would make it you know put it in his own words and make it so much better can i redirect the question for you judge the part because you told me something right before we started that was really interesting about your courage trajectory and 911 and i i think that the students will find this very interesting okay so i did clerk and i'll answer that at the back end because i'll tell you so i was a federal prosecutor in dc and um i was having i got offered a great promotion and i called my wife to tell her and i said i got great news she said i got better news i said okay do you want to hear my news she said sure so i told her she said that's great can you do it back home in kentucky i said no and she said we had zach i'm pregnant with carmen and i'm having morning sickness and you're not around remember about the teamwork concept i hadn't gotten that down and as we started having kids i realized that it was a team and so my wife said we're moving home so i said okay i'll go to a firm and i went to a firm i thought okay i'm going to make money i'm going to provide for my family and on 9 11 i boarded a plane to los angeles and we were on the plane and the pilot came over and said the president's ordered all planes to land and i said my prayers and i told the lord if i if i hit ground i'm going to go back into public service and never leave and so we got we landed and i put in an application back to be a federal prosecutor and i never left my mom had moved away too from her calling which was ironic independent of me and she opened a restaurant that was fabulous in ann arbor an indian cafe it was delicious and after 9 11 she decided to work with troops and she started off working in the army with green berets and then eventually worked with troops with ptsd and used your social work jury and that's what you retired from so we both did that um i didn't realize you were on a plane so you were you were on a plane i was on a plane we got redirected to st louis and i got down the worst part of the story i gotta tell it because i love my sister-in-law so my wife's family is wonderful it's a huge family they're all wonderful big catholic family and i just love them and it's so much fun you know for all the hard work amy and jesse go through now i've stayed at their house it is a lot of fun i mean their family is fun and they're loving and they're caring and they raise kids the way kids should be raised like you know these kids either happy but they understand like how a family works and they chip in because when you have that many kids kim's family is identical they're just like it a big catholic loving family and i'm on a plane kim is remember still pregnant right because we had just moved home she has zach who's a one-year-old and she's busy her sister who we spend all this time with i never let her forget it calls her and says isn't a moan on a plane today her name's linda and kim says yeah and these are when the planes are flying into the towers she said you better turn on the tv and so she panicked of course i got down and the first thing i did was call her and you were able to get through through yeah yeah cause remember the cell phones were all jammed because so many people were trying to call everything was jammed you had to use the they aren't even familiar with them these phones where you put quarters in and you dial and i called our homeline so it was landline the landline but yeah i got through and uh and you were determined right then you're going back in the past i got down on the ground i kissed the ground i thank the lord i would see my wife and kids again and see carmen born and i said i'm gonna go back into practice and i'm gonna hunt these suckers down if that's what the president asked me to do and so it ever since then i've stayed in public service i vowed and i told my wife i said you know those dreams of us having money just forget about it um now she you know she went back to work and she's doing the lion's share as she of bringing doing that type of stuff but she's she's an amazing person and like amy i mean one of the keys for all of you as as you get older is that teamwork is so critical because it really is a team and you've got to work together in so many ways you won't anticipate to clerking if i may answer that question because i want to encourage everyone that has the opportunity to do so and i did and i did for two carter appointees both civil rights icons um judge spiegel who did so they were such great mentors to me irrespective of the way we may have seen things a little differently he was a marine in world war ii he was jewish marine in world war ii and a fighter and desegregated the cincinnati public schools was a kind of civil rights learning became a district judge and judge jones who was general counsel of the naacp a little after thurgood marshall and was on the sixth circuit still he's still living thank god and i get to have lunch with him once a month and there um both of them amazing people judge spiegel did a reading at our catholic wedding i remember i told you it was jewish and judge jones just did my investiture and it they're they're mentors we see the world differently uh we we approach cases differently but the one great thing about the judiciary that maybe doesn't exist enough in society isn't anymore is we can disagree without being uncivil and i wish that existed more in society i wish society resembled the judiciary in so many ways because we'll sit down we'll discuss a case we'll disagree and we'll go write our opinions and we'll move on and we'll go have dinner together and that's one of the great things about the judiciary and i hope that never changes i agree you find this with your colleagues as well oh absolutely it's not personal um it's it's absolutely not personal you know the we all wear the black robe because personalities are not supposed to be involved that depersonalizes the situation so yeah it's you you write you you write a dissent you know you go out to lunch you decide you go to conference you cast your votes you cast your votes to be different and then we immediately go to lunch and talk about our kids and you know it's it's you can't function on a court you know you have lifetime tenure if you're an article three judge so it's kind of like a very it's a marriage to these people in some respects right you have to to get along and respect one another and there are standards of decency that make it enjoyable and um and animals right i wish were more widely accepted let's get some more questions yeah go ahead um this is a question for judge laparr you mentioned that you were a prosecutor before um and in the role of a prosecutor you're arguing to a judge um and now you're on the other side being argued too by prosecutors uh which is an interesting transition you speak a little bit about that the challenges and maybe what which role you like better yeah i love them both they're very different so the great thing about being a federal prosecutor is you work for the department of justice and the goal isn't to win or lose it's to do the right thing and you can go home every night put your head down on the pillow and know you did the right thing and if you can't do that you didn't do your job that day a judge is very similar in that regard but different in kind what i found especially on the district court so i held my old office the office i ran to a very high standard because i said i know how the sausage is made i know you can do things the right way every time so i held them to high standards as they should be held what i found much different was as a prosecutor it was much easier to ask for a sentence than a hand down a sentence and i used to sentence on mondays and my wife and i'd struggle all weekend with what sentence to give and kim said to me you're such a miserable person over the weekend can you please move your sentencing day and so i moved it to thursdays but i couldn't at first figure out it was such a struggle and it's always been hard don't get me wrong sentencing people is always hard for anyone that cares and and loves humanity and understands and what i figured out that helped me is as a person of faith i understood i'm not judging the person because i thought but for the grace of god there go i right i could have made some mistakes and gone down the wrong track and you're not judging the person you're judging their acts i left it to god to judge the person and i always told them i said good people make bad decisions i tell my kids this and those decisions have consequences and that's how the system works once i got to that point i think i was in church praying when the lord spoke to me and said you know don't worry i got you and i finally underst it dawned on me i don't know how people without faith do it it allowed you to do your job better yeah it allows me to do my job judge the acts and divorce the fact keep separate the fact that someone else will judge the person that's not my responsibility my responsibility is to judge the acts because there really are good people on the wrong side of the justice system and the reason is you go in especially in kentucky where we've not saying there's not good people everywhere but um people who get injured get prescribed opioids become addicted and then sell them to fuel their habit get caught up in a conspiracy now you're in federal prison you know and you see those people business owners all kinds of people and so as a prosecutor it was a lot easier because you were just asking like you judge sentenced this person i never felt the weight of that responsibility until i became a judge and that was the most striking difference to me we don't have much time and i want to get as many questions from the students as possible so maybe we'll go through more rapid fire for a couple more questions yeah patrick go ahead um recently uh in regards to hour difference in other cases the courts had to reach questions of how much judges should be expected to sort of become experts in particular policy areas for cases in your experience how frequently do you have to become very rapidly very knowledgeable about a particular policy or policy area how difficult is that how do you go about it i have not had to do that i mean um i see some administrative law cases but those are primarily directed to the dc circuit so those kinds of agency policy questions are not ones that the 7th circuit docket is very heavy on yeah and so a little different than the answer to your question is we are generalists and so in every case what i tell lawyers if you're a lawyer before you become whatever you want to become and you decide to go down this path is i think in the movie philadelphia which you're too young to remember but denzel washington has this great line he's a lawyer in the movie and he says explain it to me like i'm in kindergarten and that's lawyers have to get immersed in it and be able to explain it to us the generalists whatever their specialty is and we have to be able to understand it to get that immersed whether you're a trial lawyer or an appellate lawyer you've got to understand it backwards and forwards and then you've got to explain it to me like i know nothing and but we try to in every case we try to become an expert in whatever that area is we never accomplish that but you as lawyers they can help us by writing good briefs and giving good arguments this is one of the things you said so it's so interesting because you're yeah learning new things all the time yeah and um johnny asks how you can yeah um thank you again for both i hope you for coming um and miss barrett obviously regardless of what the congressman woman whose name escapes me as of right now talks about your horrible evil dogma that lives within you your track record as a judge lawyer mother and person speaks for itself and that thank you god awful my question is if the argument is that originalism and textualism is the best way to promote jurors or judicial restraint about judicial activism how do you respond to critiques about plessy versus ferguson where many of them argue that the original's perspective indirectly upheld segregation in a way well one thing that's important to understand about originalism sometimes people caricature it and say all originalists would all will always get it right because there's always one answer you know justice scalia and justice thomas are both originalists and they did not always agree so the fact that plessy you know has some language in it that sounds originalist does not it's not an indictment of originalism it's just an indictment of that opinion they just did it wrong so originalists can make mistakes just like anyone originalism is not infallible so i i don't think you can point to plessy and say oh therefore originalism is a failed enterprise any more than you can say indict any particular theory dred scott is actually the first case that employed what's known as substantive due process which is is a theory that tends to be associated more with pragmatic approaches to the constitution or living constitutionalists but that's not one that they would want to claim but i wouldn't say that dred scott is itself evidence of that being a failed enterprise any theory can can not be true to itself and i think to add to that i think it's hard to indict originalism with plessy there's been plenty of originalist defenses of brown which obviously reversed and eradicated that terrible decision i want to point one thing out just for fun there was one to center in plessy you know where he was from no kentucky you can make an argument that's the actual original heartless descent right yes yeah but you said rapid fire so i shut my mouth given what we saw in the kavanaugh confirmation process do you think that future nominees might sort of second might reject their that opportunity to avoid going through that same process i think it's a real risk i think the i think that the confirmation process has gotten very brutal obviously there's just been increasingly not not just the kavanaugh nomination i think you know justice ginsburg recently said the way it is now is not the way it should be it should be the way it was before even at the court of appeals level it's really escalated and i think that part of that is because people have a fundamental misunderstanding of the judicial role and if you think that the judge who is going to be confirmed to a court of appeals or to the supreme court is going to be imposing his or her policy preferences on you then it leads to kind of this all-in we have to take this person down if we think we're going to disagree with the policy preferences so i think it's really a feature of judges cultivating in some instances this perception of the judicial role of the public's perception of this is the judicial role and it's not the judicial rule um and it's it's very dangerous i think it's it's dangerous because um for our courts to function and fulfill their role in society and to function well people have to respect them and if everyone thinks that courts are just policy making arms then they're not going to be respected right so i yeah i think it's become a very toxic situation yeah anything to add to that i agree with everything she said it perfectly yeah toby just following up on that do you think then that's maybe even a better argument for why mortgages should adopt an originalist uh perspective kind of leave checking making making sure or doing every make taking every step possible to kind of check your own personal biases at the door and look at the law objectively yeah i mean i think that's the exact words but are one of many reasons but a great reason and you know originalism is a humbling enterprise and as amy said there are great opinions from justice scalia and justice thomas on opposite sides of issues both trying to show their work and say why they're right and it really is it's hard it's humbling and you one thing i'll tell you if i can go on for one minute about being a judge i became a judge and someone said to me if you say flowers would look nice there the next day flowers will be there and that can go to your head and you can start to think that you're this incredibly gifted person that you had a right to the job none of us have a right to these jobs people ask me did you become a judge too young because i was 37 when i was appointed and or nominee but i i would answer in the same way we're still hopefully young considers that but what i would say is you know what kept me humble and honest when i realized that that could happen because that can go to your head all that power is you go home every day and your spouse and kids remind you you're just a father or mother you're just a husband or wife and your responsibilities to get dinner on the table get me to class get me to sports get me wherever you got to go you're just a taxi cab driver and i don't care what you do during the day when you're home you fill that room and they remind you you're fallible the best story i have is when i was uh when nick was six my youngest i came home one day and he was doing something and he irritated me and said nick stop doing that and he turned to me and he said you're not the boss of me mom is that just reminds me what's in your place right away i presume this is still true let's get one one or two more yeah so there's been a lot of talk about scalia and originalism and this really speaks he has he seems to present this idea which i find really interesting he seems to claim that the state can support religion in general above non-religion and i wonder if you guys think that's a really tenable position from an original perspective i haven't done the work on that which i think is what you know an original as an honest originalist answer is i haven't dug in and do done the work on that in a way that professor munoz i'm sure has done more than i so um i guess i'll defer to professor you know his views whatever he says i'm sure is right yeah some of the opinions in which justice scalia has said that i think there is evidence for that especially when you look at founding era practices especially when you look at the fact that many states at the time did have established religions you know it says congress shall establish no religion so justice thomas's position is that it's not an amendment that's enforceable against the federal government because it was one that was designed to leave the states free to establish religions and not have congress override that so i do think from the founding era there's plenty of evidence that the state was supporting original religion over non-religion in a very general sense but as it cashes out or applies to any individual circumstance i'd have to do the historical work and i think it's hard for originalists to answer any question specific and today in my speech i walk through the struggle i have in coming up with answers to certain questions and how hard it is and i think amy's point's exactly right that we we can't answer those questions like it's impossible without doing all the work again if you go back and look at either of our originalist opinions you'll see our own struggles as we work through to an ultimate conclusion can i can i we really need to uh conclude ask just sort of a few personal questions sure uh what do you do for fun chase my kids around i mean i i i love watching my kids play sports do whatever they're doing uh when zach did mock trial anything like that you really give up a lot of your hobbies when you have kids and so i do like to read when i have time i love playing golf i played once last year as i told you um so i i feel like i'll get those back when my kids are gone until they have grandkids and then i'm sure that's all i want to do yeah similar i mean kids do occupy a lot so but some of my hobbies are now family hobbies my most of my family my husband and you know the majority of our children work out at a crossfit gym in town so we do crossfit together which is fun um yeah mock trial is big in our house sports reading to my kids um yeah okay the right answer was watching notre dame football [Laughter] uh books or movies you have a free night you go to a movie you read a book um we don't go out to movies anymore we mostly just watch movies at home but i will do a movie mostly because even if it's not something that jessie and i are talking during it's something that you know we can be sharing the same experience and honestly sometimes you know at the end of the day after i've worked all day and then come home and been the taxi driver and the cook and the cleaned up everything i just kind of don't have the bandwidth to necessarily sit down and read a dense book i think like amy if we're gonna if kim and i are gonna go out and we get a free night which is rare we go to dinner not a movie so we can talk and enjoy each other's company if we're just too beat we watch a movie at home we don't go out to movies if we go out it's dinner okay and this is one of my favorite questions book you read maybe when you're in college or when you're young that influenced you um well i read scalia so i hate to come back to justice scalia but since its influence and bible would be of course the easy answer and the one to give but i'm going to give you a different one yeah because i think that's unfair i'm going to say scalia put together a compilation on originalism that's really fascinating and that's kind of what started to open my eyes to originalism is reading some of scalia's stuff and so scalia and thomas i both admire greatly one thing i really admire about them is they try to make originalism accessible and scalia's done a lot of that with his books and things and if you ever get the privilege of hearing justice thomas do a q a he's he's a lot of fun and phenomenal to see was this in law school that you were you were reading school yeah yeah i'm going to go to totally different direction and say something not law for a book and i don't want to say most influential because i think that's a hard question to answer you know there are so many books that influence you for so many different reasons but when i was probably in early college you know so maybe in my you know late teens early 20s i one of the classes that i took on women authors you know there were two books one kate chopin's the awakening and one willa cather's my antennae and both of them were about women who won more successfully than the other protagonists but women in the 19th century facing very different social environments where women had less freedom and how they responded to those environments and kate chopin's the awakening is set in new orleans which is my hometown so i found that particular setting very interesting but thinking about how women have responded to social structures um is something that i've had to do a lot and those books kind of started me thinking about the question judgment just thank you so much [Applause]

Channel: ND Center for Citizenship & Constitutional Gov.

Views: 53,829

Keywords: Constitution, Tocqueville, Notre Dame, thapar, Amy Barrett, Midwest Photographics, Amy Coney Barrett, SCOTUS, Supreme Court, Jurisprudence

Id: y_jdVXE_JWs

Length: 72min 15sec (4335 seconds)

Published: Tue Sep 29 2020