It is said that those who can’t do, teach. It’s not necessarily a fair saying. It’s neither fair nor sequentially accurate in the case of Amy Coney Barrett, who went from Notre Dame law-school professor (teaching) to Seventh Circuit Court of Appeals judge to Supreme Court justice (doing). The experience has provided her with a revealing glimpse of the natures of two sides of the legal profession. This was the subject of a recent event in which she participated, with Catholic University of America Columbus School of Law professor Kevin Walsh, as part of the school’s Project on Constitutional Originalism and the Catholic Intellectual Tradition.
Concerning the differences between being a law professor and being a judge, Barrett cited the practicality of her current work, and its urgency. In the former capacity, she “spent a lot of time thinking about those questions like originalism as a theory of law, as opposed to originalism as a theory of adjudication.” Whereas now her daily work involves “thinking about how, in an originalist opinion, am I doing originalism.” And she has to do it in a “compressed timeframe” as “you don’t have as much time to reflect as you do as an academic.”
These realities, of course, have not stopped her from thinking about bigger-picture matters. A few that occupy her thought still include the roles of history and tradition in forming judicial opinions. She stressed the need for caution about the former, recalling counsel familiar to law students. “The old saying about legislative history,” she said, is that “looking at legislative history is like looking over a crowd and picking out your friends,” something that can also be true for history in general. True, some history is more straightforward, such as that surrounding ratification. Beyond that, however, it gets “trickier.” Likewise, concerning tradition, she cautioned that “tradition or any kind of practice could never actually surmount what the original meaning was.”
Though the practical necessities of Barrett’s position have forced her to act differently, she has not taken on a “maximalist” view of her power as a justice relative to other branches of government. Describing the Supreme Court’s role as superior to other courts, she said that “judicial supremacy within the judicial branch, the Supreme Court’s supremacy, is important.” However, “when you’re talking about outside the judicial branch, which is where debates about judicial supremacy focus,” she does not think that “there can be an absolute take on judicial supremacy.” Thus, her sense of the difference between the opinion of the Court (“the explanation for the judgment” in a given case) and the judgment itself (“the resolution of the case”) has not changed: “A judgment only binds the parties of the case.”
These are only a few of the topics discussed at the event. The whole thing is worth watching.