I am making my way through Justice Barrett’s new book, Listening to the Law. I’ll put the praise up front. This is a very well-written book. It is tight, well-organized, and enjoyable. I think a non-lawyer could pick up this book and learn a lot about the Supreme Court. It is also clear to me that Justice Barrett wrote this book herself, and enjoyed writing it. She has a very distinct writing style that comes through on every page. There was no ghost-writer used here.

In due course, I will offer some more in-depth comments, but here, I’d like to highlight some of the new things we learn from the book. In particular, I’ll focus on Chapter 4, where she walks through her process of deciding cases.

First, Barrett explains her process before oral arguments. Barrett will read the brief from the Petitioner, Respondent, and when available, the Solicitor General. Barrett is very clear that she does not read amicus briefs “at the outset of [her] preparation.” At a recent confirmation hearing, a Senator worried about the dark money that funds amicus briefs. I think this concern is misplaced. Barrett said she will “read some amicus briefs, like those filed by state governments.” But she finds less helpful briefs that “dwell on policy arguments.” I would know nothing about such briefs!

Second, after reading the briefs, she will read the clerk’s bench memo. By contrast, when she served on the Seventh Circuit, she would read the bench memo before the briefs. Why the change? Barrett writes, “At the Supreme Court, by contrast, the question presented is crystallized, and the quality of briefing is almost always superb.” Barrett wants to form her own “preliminary views” before reading the recommendation.

Third, Barrett explains that the clerk authoring the memo chats with her co-clerks, as well as the clerks in the other eight chambers:

Though the memo is the clerk’s own work product, she doesn’t prepare it in a vacuum. In the course of working through the arguments, she has conversations with her co-clerks, as well as with the clerks working on the same case in the other eight chambers.

I don’t think this practice has ever been publicly confirmed by a Justice. I find it fascinating that all of the clerks will chat about the case. I suspected this type of shuttle diplomacy happens after a case is happened, but it apparently happens before as well.

Fourth, after reviewing the clerk’s memo, Barrett will write up her own analysis. In some cases, Barrett has a strong sense of where she will lean. in other cases, she does not.

After some back-and-forth with the assigned clerk, I sit down at a computer, do additional research if necessary, and write up my own analysis. In some cases, I’m practically certain of my view, particularly if it’s an issue that I’ve dealt with before. In others, I have a preliminary sense, stronger in some cases than others. And there is a small subset of cases in which a first reading of the briefs leaves me evenly divided. Oral argument is most likely to move me in the latter two situations, but I’m always open to hearing what the lawyers say in the courtroom.

Fifth, Barrett offers a detailed analysis of oral argument. Barrett uses two different terms for the phases of OA: “open floor” and “cleanup round.” I usually refer to the latter as “seriatim” but I can see why “cleanup” makes sense. Barrett will always re-listen to an argument if she is assigned the opinion. Why does Barrett not read the transcript? “The answer is that audio allows me to multitask, so it is background while I cook or run errands.”

Barrett also relates how her parents listened to oral argument in Trump v. Anderson. Of all the cases they attended, it is curious Barrett mentioned this case.

Sixth, Barrett discusses her process after oral argument. She hashes the case out with all four of her clerks. Then, she decides how she will vote:

After all of this input—the briefs, the research, oral argument, conversations with clerks—it’s time to decide how I’ll vote and what I’ll say at conference. I return to the notes that I wrote before argument and edit them as needed based on subsequent developments.

Barrett offers a useful test case to check for potential biases:

To counteract my biases, I substitute a different policy into the legal frame. For example, if the question is whether a statute allows an administrative agency to adopt a regulation that I dislike, I imagine the agency using a statute with the same language to adopt a regulation that I like. If a free speech claim involves a message with which I sympathize, I plug in a message I disfavor. Not every case is susceptible to this exercise, but every case is susceptible to this question: Can I look the losing party and any dissenting colleagues in the eye and honestly defend my conclusion as my best understanding of what the law requires?

I think this analysis usually winds up with “no one has standing.”

Barrett relays that Justice Scalia said it took him longer to decide cases earlier in his career. Barrett writes, “I have years to go before I’m at that stage, so at this point, preparing for my conference vote consumes a considerable amount of time.” I can sense that Barrett’s lengthy deliberations may stand in contrast with how her other colleagues decide cases, even those with shorter tenures.

Seventh, we get a peak inside voting at conference. Barrett relates the dynamics where the Chief Justice votes first:

The justices speak and vote in order of seniority, with the chief justice starting the process. This is different from the practice at the Seventh Circuit, where the most junior judge talked and voted first. I generally like the system at the Court, because it gives me the opportunity to consider and respond to what others have said. The flip side is that it can be frustrating to speak toward the end, because it limits my opportunity to persuade the seven justices who have already voted. (As a junior justice, Justice John Paul Stevens disliked the system for this very reason and advocated for a change of order.) Still, colleagues do listen to those later in line and sometimes adjust their positions after the first round of voting is complete. Conference discussions are respectful and calm, and we do not interrupt one another.

One of my most egregious errors came in my first book, Unprecedented. I was trying to imagine what the conference was like after NFIB v. Sebelius. I didn’t know if Roberts would have voted first or last. I asked a friend who knew a lot about the Court, and he said Roberts voted last. And that is how I set up the conference. That error still eats at me twelve year later. Now Barrett has publicly confirmed the voting process.

Eight, Barrett discusses the process of opinion assignments. Here, she relates things that I do not think have ever been confirmed. The assignments are not actually made at the conference. Rather, they come later in an assignment list. The Justices do not know who will write what until the list is circulated on Friday afternoons. Barrett also alludes to how the Chief Justice assigns opinions. Keep in mind that Roberts is in the majority about 95% of the time. It is very rare for anyone else to assign a majority opinion. So when Barrett writes that Roberts “works with other assigning Justices,” she is basically saying Roberts works by himself.

A memo containing opinion assignments circulates at the end of the two-week argument session. At that point, based on the justices’ votes across the cases, it is clear how many majority and dissenting opinions will be written, so the chief justice, working with other assigning justices, attempts to equitably distribute the work. My clerks wait eagerly for the assignment list to come around on Friday afternoons, to see both what I get and whether their predictions panned out.

I think the emphasis is on “attempts.” And later Barrett reveals what we all know–the Chief Justice keeps the most important cases for himself.

Assignments in the most complex and high-profile cases typically go to the more senior justices, and it is the norm for the assigning justice to keep the highest-profile assignment for herself. For example, in the 2022 Term, cases involving affirmative action and voting rights were among the biggest; Chief Justice Roberts wrote the majority opinions in all of them. [FN34]

[FN34] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Moore v. Harper, 600 U.S. 1 (2023); Allen v. Milligan, 599 U.S. 1 (2023).

Preach, ACB. We all know this to be true. The opinions are not actually split equitably.

I would favor a reform: the Chief Justice position rotates each month. The Court is in session nine months out of the year, and there are nine Justices. The Justices could draw a number from a hat, and each month there would be a new Chief. That Chief would president over oral argument, preside at the conference, assign opinions, and chair any administrative committees. May and June, which lack oral arguments, would be less desirable, but each term brings a new luck of the draw. I think the Chief Justice exercises far too much power. That much power goes to a man’s head. That position needs to be weakened.

I think this reform could be achieved by internal Court rule. I’m not sure Congress could legislate on this matter. Moreover, this plan goes against my interests. On average, I would prefer an assignment from Chief Justice Roberts than from Justice Jackson. But for one month of the year, Justice Jackson, the most junior Justice, would be able to preside, and assign majority opinions. This sort of dynamic, I think, would actually improve the functioning of the Court. Let each member take ownership in the Court. Then again, there is a much easier way for John Roberts to stop assigning opinions, but I repeat myself.

Ninth, Barrett addresses a known phenomenon: the flipped opinion:

One of the most important factors in an opinion assignment is the author’s ability to hold a majority. A justice who expressed an idiosyncratic view at conference might produce a draft that others are unwilling to join—and that creates complications. It might prompt some members of the majority to reconsider their votes, potentially flipping the result. The majority opinion might have to be reassigned to another justice, creating delay and unanticipated work. Or members of the majority might find themselves at an impasse, with multiple draft opinions supporting the judgment, each on a different ground and none garnering five votes. . . .

Justices do not frequently change positions after opinions circulate, but it happens. Flipped votes would be disruptive if they occurred too often. But the case isn’t over until the judgment issues and, importantly, until the justice who has authored the opinion has gone through the valuable exercise of writing the analysis.

I think Barrett is speaking from personal experience here. In 2024, I speculated that Justice Alito lost the majority opinions in Moody v. NetChoice and Gonzales v. Trevino, as Justice Barrett jumped ship. Joan Biskupic’s reporting later confirmed my speculation of the flips. Indeed, this would have been a rare case where Justice Thomas assigned the majority opinion in NetChoice to Justice Alito, who then lost the majority. At the time, I wrote:

But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit’s ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I’ve written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.

This must be one of the cases where Barrett was not certain going into oral argument.

At various points throughout the book, it seems clear Barrett is talking about her own decisions, but she frames them more generally.

Tenth, Barrett turns to the process of writing the opinion. This was the portion of Chapter 4 that I had the most difficulty with.

On the one hand, I don’t want to lose the majority; on the other, I can’t compromise my own principles. Threading the needle can mean relying on one argument rather than another so that more justices can join. This is critical when the majority is slim, because the loss of one vote could turn the opinion into a plurality or even a dissent. But it’s important to me even when the margin is comfortable. If I can adjust an opinion to allow more colleagues to join it, I will, so long as the reasoning remains consistent with my own view and others who have joined the opinion agree. Skirting issues is sometimes the price of finding common ground—though it’s frustrating to delete points I’d like to make.

Over the last few years, when the “majority is slim,”Barrett is likely the deciding vote. It is the lost of Barrett’s vote that turns an opinion into a plurality or dissent. The Justice most likely to “skirt issues” is Barrett herself. She routinely writes concurrences to stress the issues she is not deciding. Barrett tries to frame this paragraph about others, but it aptly describes how she operates.

Barrett is the median Justice. In any contentious case, her vote likely holds the majority together. If the Court’s conservative go too far to the right, Barrett will drop off with a concurrence. If Barrett is assigned the majority, and the conservatives disagree with her, the Court’s progressives will hold their nose to get a majority. In short, for all the talk about consensus, it is usually Barrett herself who is going to call the shots about what is and is not in an opinion.

I think the book has a certain lack of self-awareness in this regard–especially when it comes to the emergency docket, which Barrett tries really hard not to talk about.

Eleventh, Barrett explains how she actually writes an opinion. The clerk writes the first draft, but Barrett will “always write portions from scratch—sometimes virtually the entire opinion, sometimes sections of it.” I believe it. Barrett has a distinct writing style that comes through in every opinion. Barrett also writes with a pen-and-paper:

I typically begin with pen and paper because I write faster that way. At the keyboard, the ease of selecting and deleting text tempts me to perfect each sentence before composing the next—and it’s demoralizing to sit at the computer for an hour with only a few sentences to show for it. I’m less inclined to be obsessive on a legal pad, and it’s more efficient for me to establish the flow of the argument with a pen before I start typing.

On this point, I cannot relate. I don’t write anything by hand. I only type. One of my favorite lyrics in Hamilton is “Put a pencil to his temple, connected it to his brain.” My keyboard is connected to my brain. When I think, the words flow onto the screen in full sentences. Perhaps the most valuable skill I ever learned was touch-typing.

Twelfth, Barrett discusses the process of getting other Justices to join her opinion:

Before I joined the Court, I was sometimes frustrated by an opinion’s cryptic language or its failure to resolve fairly obvious points. Now I better appreciate that glossing over issues is often deliberate. If justices disagree about an issue that isn’t necessary to the bottom line, it can be omitted from the opinion to keep a majority on board. Or, even if justices don’t actively disagree, some may not be ready to commit to a position—perhaps because the briefs or lower court gave it too little attention. So there is often a good reason why the Court says less than a reader might want to know.

Again, I think this passage is autobiographical. Which Justice is mostly likely to use cryptic language or fail to resolve an obvious point? Barrett.

Thirteenth, Barrett explains when she will write a concurrence:

Unlike the author of a majority opinion, the author of a concurrence has the freedom to express her own views without worrying about keeping others on board. I write them in a few situations. If I think that lower courts might interpret the majority opinion too broadly or too narrowly, I might use a concurrence to emphasize the scope of the Court’s holding.[38] I’ve also written them to explain my own thinking about an aspect of the majority opinion or to identify areas of the law that could benefit from development by advocates and scholars.[39] And if I refrain from joining part of the majority opinion, I usually write a concurrence to explain why.[40]

Far too “few” concurrences. And I think “usually” is an overstatement. On the Court, Barrett is least likely to write separately. And a common frustration is that Barrett does not explain with any clarity why she didn’t join parts of a majority opinion.

That’s it for now. I’ll have more on the book in due course.

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