- [Narrator] Funding for this program is provided by Panonica Foundation, Judy and Peter Blum Kovler Foundation, Ascension Seton, BP America, Laura and John Beckworth.

St.

David's Healthcare, and by, and also by.

A complete list of funders is available at APTonline.org and LiveFromLBJ.org.

- I want us to have confidence in our democracy, I want us to have confidence in our institutions, because it's only if we have confidence that we can move forward and that we can bring to fulfillment the promises of democracy, the promises of the Constitution, and of our institutions.

(epic music) (epic music continues) - Welcome to the LBJ Presidential Library.

I'm Mark Updegrove.

Since the library was dedicated over a half a century ago by our 36th president, Lyndon Baines Johnson, it has hosted some of the biggest names and best minds of our day to discuss our nation's rich history and the issues of our times.

Now, we bring those conversations straight to you.

Tonight, we present part two of my interview with Supreme Court Justice Amy Coney Barrett, which took place in front of a live audience at the LBJ Library in late 2025.

Justice Barrett talks about her book, "Listening To The Law", in which she strives to demystify the court's decision-making process.

We also discussed the increase in the volume of shadow dockets before the Supreme Court and why despite declining public trust, she believes Americans should continue to have faith in our democracy.

Emergency dockets, also called shadow dockets, are on the rise.

You devote a part of a chapter in the book to emergency dockets.

Talk about what an emergency docket is.

- Yes.

So, the thing I spend the most time on the book is the thing that's probably the most familiar to you all, and that is our regular merits docket.

And that's the cases that proceed at the normal pace.

They come to us after they've been fully litigated below, and then we have a decision from the courts below, we hear oral argument, we get briefs, and we go through that process that I described of sitting around the table in the conference room.

The cases that come up in an interim posture on the court's emergency docket are on a different track.

So, these are cases that have not yet been fully resolved by the courts below.

And we are asked to intervene by one of the parties below to kind of set a default rule that will be in place as the case is litigated and as the court decides it.

So, for example, if a district court enjoins a policy that's been adopted by an administration, a presidential administration, sometimes that administration will come to us and ask for the injunction to be lifted so that it can continue enforcing its policy, while the legality of that policy is fully litigated.

Or if a district court, lower court, refuses to enjoin the policy, then the people who have sued, say the administration in my hypothetical, these cases don't come up only in the context of the administration.

But since that was your hypothetical, I'll put it in those terms.

Might ask us to enjoin the policy so that the policy can't be enforced, while it's being challenged in the lower courts.

These are not cases, we very rarely have oral argument on these cases.

These are not cases where we go and sit around the table in the conference room.

These are not cases where we circulate the, you know, the opinions normally as we do in the merits cases.

And as I describe in the book, when we have a merits opinion, we spend a lot of time going back and forth.

These interim cases, we don't have any of that and we don't have time, because the entire premise of it is, please act quickly, because we need you to set one default rule or the other.

Either this policy can stay at place or it can't, while the litigation plays out.

So, those are the interim cases.

I think, it's very important to understand that when we render decisions, which is why I can't talk about that other case.

These are not final adjudications.

They are just interim decisions and they turn on more than just, I mean, that the standard is, does the applicant who comes to seek the court's intervention have a fair prospect of success?

And then there are other factors that we take into account like, what irreparable harm might there be, if we don't give this person relief, whatever kind of relief they seek.

And what is the balance of the equities that's at stake?

So, all to say this is a different animal, it happens in a different timeframe with different decision-making inputs with a different standard, and it's not a final resolution of the case.

And I think, the way that the cases get reported, and because it's an unusual beast, it's not what people are usually used to seeing from the court, I think, they get blurred, but it is a very different track.

- Do you think emergency dockets have a place in the court?

Do you think that there's too much reliance on the emergency docket?

- Well, Justice Kavanaugh observed in one opinion, and he's entirely right, we have to rule on them when they come.

So, we don't have much choice.

When somebody files a motion before the court, you either have to grant it or deny it.

So, it's certainly a new phenomenon and there are a lot of theories about why it might be on the rise, but the court has to rule on the applications that it receives.

So, we can't close our doors to the business and say, "We're no longer taking the applications."

So, when the applications come and we're not the only ones having to make this adjustment, because the district courts and the courts of appeals are having to move at the same pace and deal with the same kind of litigation as well.

And when I started on the seventh circuit, one of my colleagues who had been a district judge, was explaining to me, and she was doing it in the context of saying like, let's not be, you know, understand where the district court is coming from.

She said, "I spent many years on the district court, and the district court is like the ER," you just have, and her husband was a doctor.

So she was like, "You know, you have patients coming in and you're just trying to do what you can.

You're stemming the bleeding and you're not spending a lot of time with each patient to make the diagnosis.

You know, or as much time as you do have up here at the court of appeals.

We're the specialists," she said.

"You sit down and you have time to reflect.

You have more time to think."

And that's true at the Supreme Court too.

However, the emergency docket has all of us functioning like an ER.

So, all of us are taking the cases on a much higher pace with a much less time to spend to sit and dwell and to think and to read briefs, and do all of the things that I described in the regular merits process.

- But let me understand, Justice, you could deny them, you could choose not to take them.

Is that right?

- No, that's not right.

- It's not right?

- That's not right.

- I apologize.

- Let's see.

We can deny them, but we can only deny them after applying the standards.

So, every application that gets filed, there's a four-factor test that we have to apply and we can only deny it after concluding that the applicant does not have a reasonable or a fair prospect of success on their merits and won't suffer irreparable harm.

So, in other words, we can't deny it, 'cause we're refusing to decide it.

So, the applicant who comes to us is entitled to have us apply the test, and that test engages us in the factors, including the reasonable prospec of success on the merits, fair prospect of success on the merits.

- So, one of the points you make in the book is that, that the opinions really matter.

And that if you want to know about a case, read the opinions, makes perfect sense.

You cite your brother-in-law who read the Dobbs, all 29 pages of the Dobbs decision, and you hugged him, because that's what you want people to do.

If they think a decision is controversial, read the opinions.

- Yes.

- But yeah, you write that opinions give every reader an opportunity to critique a decision on its merits.

And you write further that opinions are the court's most important work product.

But emergency dockets don't typically, include a legal opinion, nor do they include signatories.

So, how are we to know how the verdicts were rendered and how are judges at lower levels to know how to apply them?

- I think, that's a great question.

I think, you know, I said, and I believe, and I encourage you all to read the court's opinions.

When the court renders a final decision and settles, we talked a little while ago about stare decisis.

And how once the court decides a case, then it becomes a precedent and the default rule, I mean, all lower courts follow it.

And then the default rule is that the Supreme Court will continue to follow it, absent some serious reason to overturn it.

So, the opinion is important and it's a conclusive settlement.

The emergency docket is not a conclusive settlement, it's an interim temporary rule.

It's kind of putting, it's making a decision that will be in place for the duration of the litigation below, but it's not something in contrast to a full decision that's rendered on the merits after reaching judgment below and then judgment in the court, that then goes in the US reports and governs going forward.

So, the interim docket is not that conclusive resolution of the case as you have in the other one.

I was telling the students when they asked this question, that one thing that we have to be careful of, I mean, you know, I think, we are also figuring this out and making judgements, because the emergency docket or the volume of it is new.

My view, which is something that I say in the book and I have said in other settings, is that one downside of writing opinions on the emergency docket in this interim posture is that it can have the effect of locking in, of setting something in stone that really should be an interim posture.

Because there is a difference between asking whether someone has a fair prospect of success on the merits and asking whether he has the winning argument.

And writing it out in a decision makes it more difficult for the court to back away from it later.

Not impossible, because as a legal matter, it is just an interim rule.

But, you know, I think, that's a problem, or one potential problem.

And so, we have to balance giving guidance to lower courts, the importance of transparency, the importance of creating order and litigation, especially when the same issue is coming up on the interim docket from different courts around the country.

Those are factors, but then there's also, well, you know, is it always a good thing to have an opinion?

And then there's also the practical reality that on a multi-member court, it can be difficult and it can take time, as I described, with respect to the merits process.

If you have to have the agreement, imagine all the cooks in the kitchen.

If you're gonna have five, six, seven, eight or nine justices agree on an opinion on its reasoning, you know, that takes a lot of back and forth and wordsmithing.

If I write a concurrence or if I write a dissent that represents just my own views, I can say whatever I want.

I don't have to be particularly stressed, because it's not going to be precedent, you know, that controls future decisions, because it's just my view.

It's not the view of the court.

And I don't have to take things out or phrase things differently, if somebody asks me to, because it's my opinion.

That's not true for a majority opinion.

So, when you have something on the interim docket, which is supposed to be decided quickly, which is supposed to be a quick turnaround, it's difficult.

And not everybody might see it the same way, people might have different views, and then it's not helpful, if you have a bunch of different opinions rather than one for the court.

There's a reason why June is the big month where cases come out, because it usually takes the court months and months and months in big cases to finish writing all the separate opinions, to finish negotiating back and forth about every word and phrase, you know, in a majority opinion.

- Another point you make in the book, Justice, is that the overwhelming majority of the decisions that you make as a body are not on party lines.

And I say party lines based on the party of the president who appointed the justice.

I believe in 2022 there were only five cases that were decided on those grounds.

In 2023, it was only 11.

But if you look at the emergency dockets since the second Trump administration began, the executive branch has filed 25 emergency dockets.

24 have been acted on by the court.

21 have been decided in part or entirely in the administration's favor and only two against the administration.

So, do you worry about these decisions being perceived as partisan driven?

- Let's see.

I guess, people will say the court can't worry, and I make a big point of this in the book.

The court cannot make decisions based on fear of criticism.

The court has to make decisions based on an assessment of what the legal issues require.

And another important thing to remember too is that the court has to make decisions with respect to each case and the legal issues that are presented by each individual case, and also, looking at decisions, and on the emergency docket, as I said, these are four-factor cases.

They're not just about the merits, but you're thinking about, and I feel like I've emphasized this with some students before, and some of my students, you're thinking about the presidency, not the president.

In other words, you're looking at the office not the individual occupant of the office, because all decisions you make, whether the emergency docket or on the merits docket are decisions that are about the structure of power rather than individual people.

Because the Constitution, even though when the Constitution was ratified, the framers may have had George Washington in mind.

It was not written for one man, it was written for a presidency.

And I'm conscious of the fact I'm speaking to a presidential historian here.

So, one of the things that I try to do in the book is open up the court's decision-making process, because I want people to understand that this is nine people, these are nine justices working hard to confront the legal issues they face and trying to get it right.

And as you said, you know, about just under 50% of cases per year are unanimous.

And then when you're getting into that other number, it's all kinds of configurations all kinds of spreads.

And there is a very small percentage of them that do break down by party of appointing president.

And I don't think that that's a statistic or a number that people are really aware of based on kind of how the court gets publicly discussed.

- A recent NPR PBS poll reflects the fact that over three quarters of Americans worry about the state of democracy.

Do you worry that our democracy is eroding?

- I want people to have confidence in our democracy.

You know, I think, when we, you know, I was saying before, reflecting on Johnson's presidency and the political turmoil and even violence that occurred during the years of his presidency.

I think, it helps to step back and look at the sweep of American history.

And I do that from the perspective of the court, because when, I mean, that's the perspective that I have.

We have been through a lot as a country.

We have been through times of war, we've been through times of great upheaval, and we have always come out thus far, we've always come out stronger.

And I have great hope and I have great optimism in America.

And so, I want us to have confidence in our democracy.

I want us to have confidence in our institutions, because it's only if we have confidence that we can move forward and that we can, that we can bring to fulfillment the promises of democracy, the promises of the Constitution, and of our institutions.

- You talked about the institutions, the confidence in our institutions is faltering too.

And that might be reflective in the statistic I just gave you.

Another poll suggests that in the last five years the confidence in the Supreme Court has eroded.

It's gone down 22% from 70% back in 2020 to 48% today.

Does the court worry about that, Justice?

- I want people to have confidence in the court.

As I said, you know, and I don't think justices can or do take public opinion into account in deciding cases, because that would interfere with the judicial obligation to do what the law requires, even if it's unpopular.

But I certainly think that all of us, and well, I guess I should just speak for myself, want people to have confidence in the court as an institution.

And so, really that is the main motivation for my writing the book, is because I want people to get to know the court.

I wanna invite people in, because even if you don't agree with any particular decision, I want you to be able to engage with it on the terms that the court has engaged with it.

I want you to see the legal analysis.

That's why I hugged my brother-in-law when he walked in not just with the majority.

And I think, you don't read just the majority and you don't read just the dissent of any opinion.

Read both.

I want people to understand, and I think, the court really is the most transparent branch of government in this respect.

We do, as I said about the conference room, do our own work and we have to show it.

So, the opinions that we produce show our work.

We have to say why we reach the decisions that we do.

And so, I want people to see what we do.

And my hope, my very great hope, is that people will have more confidence in institutions once they're familiar with them.

- Do your colleagues worry about that?

Is it something you discuss openly, Justice?

The notion of the American people losing faith in our institutions generally, but also in the Supreme Court specifically?

- One thing I am very careful to do in the book, and I'll be very careful here, is not to reveal internal confidences.

So, my lips are sealed.

(both chuckling) - That was a rhetorical question, because I've read the book and I know that the justice categorically states that in the book.

So, thank you for that.

I wondered, of course, we have three branches of government, and they're co-equal so-called, but the court has no means of enforcement except to find somebody in contempt.

That most of the means of enforcement falls under the executive branch.

So, is the Supreme Court, is the judicial branch, really a co-equal branch of government?

- Well, Alexander Hamilton called us the least dangerous branch for precisely that reason.

We don't have the power of the purse or the power of the sword.

We have the power of judgment.

So, that is what we are, the Constitution designed us to do, is to produce judgment.

So we are independent, but we are the weakest of the branches.

- Yeah.

I'm gonna ask a question that I also know the answer to, because I read the book.

But you answered so eloquently, and that is, do you like your job?

(Justice Barrett chuckling) - So, what I say in the book is, when people ask me that question, it feels like not quite the right question, because it feels like an odd thing to focus on what I do or don't get out of it to say, "Yeah, I like it, or I'm fully satisfied, I'm really satisfied in the work I'm doing right now."

I regard the job as public service, and I'm privileged to serve.

And I think, there are hard things about it, there are some good things about it, and there are some hard things about it, but most of all, I regard it as an honor to serve the country and I regard it as a privilege to serve the country.

- When we were talking to those young students today, both law students and public affairs students, somebody asked you, you know, something along the lines of, why should they continue in jobs like that?

Why should they pursue jobs in the public sector?

What would your answer be to young people seeking your guidance on whether they should go into public service?

- Because we need good, young people, and good people generally, right?

But young people are the future, and we need good people in public service.

All public service is a sacrifice.

You know, most jobs in public service, you know, you take a financial hit, because you could make more in the private sector than you can in the public sector.

You know, there are things that are difficult about any public job that requires you to be accountable to the public and be in the public eye and be the subject of criticism.

But it's worth it, because if we don't have good people taking jobs than willing to do that kind of service, it's just like, if we didn't have people willing to serve in the military.

All of these things are necessar to make us a great nation.

And so, yes, I encourage young people to pursue jobs in the public sector and to devote their talents to the greater good of the country.

- I talked, Justice, about the weight that you carry as one of nine Supreme Court justices.

I wonder what you've learned about yourself as you've embarked on this role?

- That's an interesting question.

You know, I will say, I've been doing a number of interviews and no one has asked me that.

- Yeah, I'm good.

- Good job.

You're good.

Yeah, you're good.

Emergency docket, yes, but what have you learned about yourself?

No.

So, I think, one thing that this job requires is the ability to be very tough and impervious to criticism.

And I think, 10 years ago before I was a judge, I didn't know how thick my skin could be.

And I really feel like I have had to acquire a very thick skin and learn to not care what people say or think.

And I've been able to do that.

And I think, if I could be my younger self looking up at my older self, I would be surprised by that, because it has been a hard skill to acquire over, you know, my years of adulthood.

- But that's gotta take a toll on you and your family.

How do you deal with that?

- It hasn't taken a toll, I would say, on me, because, oh, well, I guess that's not true.

I mean, it certainly is difficult, but I'm at peace with it.

I really am.

- Yeah.

- So, it's not, I don't lie awake at night worrying about it.

You know, I have a policy, which you know, since you read the book, I don't read news about myself.

My husband just tells me things on a need-to-know basis.

And most things don't pass the need-to-know standard.

Every now and then, I'll ask him about something and he'll say, "I don't think you need to know."

(all laughing) And you know, there are techniques like that, that help me kinda keep grounded.

And, you know, there's nothing that will keep you grounded more than coming home.

We have four children at home who range from high school to middle school.

They really don't care about what's going on at work.

I mean, they care about some things.

You know, they'll ask about, "Oh, what cases are you hearing this week?"

But they're mostly occupied with their own concerns and their own soccer games and their own homework.

And that really is our focus as a family.

And there's nothing that will keep you more grounded and help you take your mind off of that stuff more than dealing with the concerns of your children.

- And it has to help, if you have a profound sense of purpose, as surely you do, when you sit in a position like that.

- Yeah.

- But if there's one lesson from this book that you would want people to derive to get a clearer picture of what you and your colleagues do on the court, what might that be?

- I would want you to see, and I feel like I've said this throughout, and so, I'll conclude by trying to say it just one more time.

I want people to understand what the court does and I want them to feel part of it.

I want you to, 'cause the court belongs to everyone.

I mean, the court is a public institution.

The Constitution belongs to all of us.

I want you who read the book to feel like you come away understanding how the court operates, what the justices do, be equipped to critique its work, because I don't expect you, and I didn't write the book, because I want everyone to think that the court is a perfect institution.

It's a human institution.

But I want you to have confidence in it, and I want you to love the Constitution, and I want you to love the American government.

We're coming up on our 250th anniversary of America next year.

And so, I think, it's an apt time to reflect and to be grateful for the institutions that we have.

And I'm privileged to play just a small part in one of them.

- Well, we are grateful for your time tonight and grateful for what you do for our nation.

Ladies and gentlemen, please join me in thanking Justice Amy Coney Barrett.

- Thank you.

(epic music) (epic music continues) - [Narrator] Funding for this program is provided by Panonica Foundation, Judy and Peter Blum Kovler Foundation, Ascension Seton, BP America, Laura and John Beckworth.

St.

David's Healthcare, and by, and also by.

A complete list of funders is available at APTonline.org and LiveFromLBJ.org.

(bright music) (upbeat music)