The first week in September, the beginning of the academic year and a few weeks before the opening of the Supreme Court’s fall term, would seem a favorable time for a member of the court to release a thoughtful book on the law. That did not prove to be the case with Amy Coney Barrett’s “Listening to the Law: Reflections on the Court and the Constitution,” news about which continues to be overwhelmed, and appropriately so, in the aftermath of the horrific assassination of conservative leader Charlie Kirk. But Barrett’s book contains a great deal that is relevant to the current controversies over the deepest social questions and the ability of our institutions to survive and even thrive in the stormiest seas.

“Listening to the Law” is the work of a scholar, as one would expect, but it is personal and accessible at the same time. As an introduction to the role of the judiciary and the nature of judging, it would make an excellent starting point for anyone interested in the history of the Constitution and the system of government it created. It does more, however. In the conclusion of the book, Justice Barrett describes herself as “optimistic” about the “continued success” of our system of government. The initial frame for that attitude is not some particular legal insight but what Barrett describes movingly in both her first chapter and her last: the life of her great-grandmother in Depression-era New Orleans.

Barrett opens with a photograph of the very modest three-bedroom home her great- grandmother occupied as a widow with 13 children. Barrett relates how her great- grandmother, whom she never met, also fed homeless men traveling through the neighborhood. As she writes, “She allowed them to sleep under her raised house until one fell asleep with a cigarette in his mouth and started a fire. After that, it was dinner only.”

All this is offered in the course of Barrett’s description of moving her large family with two working parents from the relative peace of an Indiana college town to the tumult and expense of Washington, D.C. She writes of her great-grandmother, “With much less than I have, she took on much more.”

The tone of the following chapters is similar, as Barrett delves into the development of her sequence of judicial appointments, the details of starting every dawn in her role as a wife and mother, and experiences in the chambers and courtrooms as she scrambles to cover a packed agenda. Gratitude and modesty characterize her account, and she approaches the role of the court and the history of our Constitution in the same spirit. “I believe deeply in the rule of law and the Supreme Court’s role in preserving it,” she writes. “I also believe that Americans of all backgrounds deserve an independent Supreme Court that interprets our Constitution and laws as they are written.”

The book retells the history of the founding, from the Articles of Confederation to the Constitutional Convention in Philadelphia, to the process of ratification in the new nation. Whatever one’s familiarity with these dramatic episodes, Barrett’s rendering is fresh and thrilling. The city of Philadelphia does not get a loving tribute in these pages. This was colonial America, with beer and liquor flowing in taverns by daylight, animals being slaughtered in the streets, and public accommodations sparse or non-existent. That our Constitution emerged from these conditions is nothing short of miraculous, and Barrett perfectly captures that mystery, with all its raw humanity.

The Founders had both genius and grit. Barrett underscores repeatedly how their work on the Constitution relied on a willingness to balance power among the branches and reserve maximum authority in the new system of government to the people. She quotes Alexander Hamilton on the judiciary being “the least dangerous branch,” because it lacked will and force of its own. “In a system where justices are not Solomons, their role is limited. They are referees, not kings,” she writes.

At one point, Barrett mentions that she is the 103rd associate justice of the Supreme Court. That fact is striking. In the entire history of the United States, barely more than 100 people, with particular training and of varying skills and views, have served as justices. Today, of course, there are 100 members of the United States Senate in a single session and 435 members of the House of Representatives — that fact alone underscores the absurdity and the danger of believing that members of the judicial elite should cast deciding votes on the most profound and contentious issues facing the country. Barrett writes, “Though the confirmation process suggests otherwise, it shouldn’t matter what the nominee thinks about the death penalty, abortion, affirmative action, or any other politically charged topic. What matters is whether she respects the people’s resolution of such issues.” This includes the observation that the people’s resolution may change, for better or worse, as free people debate and decide.

“Listening to the Law” includes a raft of other information and analysis about the courts, including discussions of how the Supreme Court dockets cases, how law clerks operate and resolve differences (among themselves and even with the judge they serve), and how the current Supreme Court building came to be after decades of meeting in the U.S. Capitol and even, for a short time, in a private home. Barrett discusses amendments to the Constitution at length, focusing on their infrequency (27 amendments in 236 years, the last, on congressional pay, ratified in 1992) even as more than 12,000 have been proposed. She notes that in the 20th century when 12 amendments to the Constitution were ratified, five dealt with the expansion of voting rights, a topic clearly of intense popular concern.

Media reports on the Supreme Court naturally tend to focus on the most vigorously contested cases and the most vehemently expressed opinions of the justices. Last June, Barrett drew attention when she sharply criticized Justice Ketanji Brown Jackson’s dissent in a case involving birthright citizenship. Barrett wrote in her own opinion that Jackson’s dissent went “far beyond the mainstream” of prior rulings and said, “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” 

As give and take goes in the public square, this seems like mild stuff. In her book, Justice Barrett is at pains to calculate the general collegiality and nonpartisanship on the court. In the 2022-2023 term, Barrett says, 47% of the court’s rulings were unanimous, and 9% were near unanimous at 8-1. In non-unanimous decisions, there were 20 different line-ups of the justices, and only five of the 58 were split purely by the party of the appointing president. “Every member of the court is a person, not a package of ideas,” Barrett writes.

What then about the Supreme Court’s 2022 decision in Dobbs — one of those handful decided by a court definitely split by the party of appointment. “Listening to the Law” is devotedly about judicial philosophy and, in Barrett’s understanding, judicial restraint, but the topic is unavoidable even in such a salving context as this reflection. Indeed, though not the focus of the book, Dobbs is the first specific ruling Barrett mentions in the book, and her overall treatment is brief but thorough. She begins her discussion in Chapter 11 titled, “Can I have that in writing?” It offers the strongest possible defense of judicial restraint, focusing first on the question of what constitutes a “fundamental right” not in the context of abortion but of assisted suicide.

In 1997, in the case Washington v. Glucksberg, the Supreme Court ruled unanimously against several physicians and a group named Compassion in Dying, holding that Washington state’s law against assisted suicide did not violate the Due Process clause of the 14th Amendment. The case involved many of the same elements of argument as the abortion cases and, later, over same-sex marriage. The plaintiffs in Washington insisted on rights of personal autonomy and self-determination. In response, in an opinion joined by Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’Connor, David Souter, John Paul Stevens, and Stephen Breyer, the court produced a “careful description” of the history of our nation’s laws to determine whether, in fact, the people understood suicide and assisted suicide to be part of our legal pedigree and traditions. The weight of that description fell totally against that proposition. Prohibitions on and prosecutions of assisted suicide had been countrywide for centuries.

In Dobbs, Barrett goes on to explain, the court’s creation of a sweeping abortion right in 1973 should have been subject to the same analysis. For a practice to be fundamental, it should, she says, “go without saying” that Americans have always embraced it. “In fact,” she writes, “the evidence goes in the opposite direction” regarding abortion. “Abortion not only lacked long-standing protection in American law — it had long been forbidden.” The country’s history since 1973 had done nothing to undermine this conclusion, and in 1973 it was even more evident. In the year before Roe v. Wade, the New York General Assembly had regretted its decision to liberalize abortion law and make Manhattan a mecca for the practice and had repealed its permissive statute (legal abortion was preserved only by then Governor Nelson Rockefeller’s veto).

Justice Barrett thus comfortably joined the majority in Dobbs as she would have the unanimous court in Glucksberg. She touches only briefly on other matters that have come before the court, and may do so again, for example, the 5-4 decision in Obergefell v. Hodges that created constitutional protection for same-sex marriage in 2015. She briefly distinguishes the abortion issue from other rights that might be ranked as fundamental. “The complicated moral debate about abortion stands in dramatic contrast to widespread American support for liberties like the rights to marry, have sex, procreate, use contraception, and direct the upbringing of children[.]” She mentions the distinguishing difference that abortion involves the taking of “life or potential life.” “Listening to the Law” is by no means dispositive of the question whether Barrett would vote to reverse Obergefell, and the differences between these issues includes the fact that Congress has voted to protect same-sex marriage whereas it has never done so on abortion or assisted suicide. The message remains for advocates of such moral and social traditions in the law to continue to pursue, and win, legislative engagements.

Justice Barrett, finally, does mention the physical threats against the court in 2022 and their effect on her family. It has just been revealed that the assassin who approached Justice Kavanaugh’s home had two other justices on his target list. The dangers are not past. Barrett’s book, read fairly, is a clarion call for collegiality, one rooted in acceptance that the court is doing its job and acting appropriately when it leaves highly charged issues to the body politic — which is free to make up, and even to change, its mind on key questions. Self-rule is the safety valve for the most intense disputes. Barrett says, “I can take it; the last few years of being in the public eye have toughened me up.”

“Listening to the Law” is a contribution to the literature about the Supreme Court, by a member of the court, and merits listening from us all.