The Volokh Conspiracy
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The focus of the talk was on the federal equity power. I knew Barrett had clerked for Justice Scalia the year Grupo Mexicano was decided, but I did not know that it was her case. Barrett confirmed that fact.
During the Q&A session, Barrett was asked about her transition from academia to the Seventh Circuit to the Supreme Court. She replied that one of the most "difficult" parts of the transition is that she is now "very much in the public eye."
I would say that in the main the bread and butter of the job is the same. You know, you're reading briefs, and you're thinking through cases, and you're writing opinions. There are many other things about the Supreme Court's docket and the way that it works. I mean, cert petitions being an example of emergency applications being another that are not things that you confront on the Court of Appeals. I think the biggest changes are the context in which all of this is happening in which you do the cases. I mean, as a as a circuit judge, you know, the courts of appeals have mandatory jurisdiction and so not every case is one that people were watching. There's no, you know, Seventh Circuit blog, like there is SCOTUSblog, you know, picking apart every case on the docket. So I think the visibility of the cases and feeling like you know, I'm learning a new job. It's like learning to ride a bike with everybody watching you. I think that being a public figure is a lot to get used to. And it's a pretty big shift. I mean for being, you know, a law professor, and then a seventh circuit judge. And then, you know, being very much in the public eye is a big shift from my former life, or when I was in this building every day. It is a big shift. And that's also a shift from the time when I clerked on the court. I think that's just the internet did exist when I corrected the court. But social media did not. And I think just the rise of the use of the Internet for the consumption of news and social media. Judges and justices pictures are much more out there. When I was clerking at the court, I was once in the great hall where tourists walk through when there are displays. And I was with a friend who clerked for Justice O'Connor and Justice O'Connor herself, was in the main hall, and a tourist went up to Justice O'Connor and asked her for directions. Absolutely no idea that they were talking to Justice O'Connor. And I think that would be much more unlikely today, it's just much more difficult to be anonymous, just because of the dissemination of pictures everywhere. So I have found it difficult to get used to that aspect of the job.
A few moments later, someone else asked if she or her clerks read SCOTUSBlog. Barrett goes on a bit of a digression about what sorts of news she reads. She seemed to be thinking out loud; this wasn't the sort of question she had fielded before. Frankly, I'm not sure what her policy is.
Let's say I have not ever talked to my clerks about whether they read SCOTUS blog. I would be surprised if most of the law clerks in the building did not. I have a policy of not reading. I read news. I'm not an uninformed person, but I have a policy of trying not to read any coverage that addresses me. I mean, I kind of generally want to know about the court. But I do try not to read like whether they're positive or negative, I think it's not a very good idea to read and consume media, that's about me, because, you know, I think there are personal and institutional reasons for that, you know, the institutional reason is that judges have life tenure, so that they can be insulated from fear of public opinion. And so to read criticisms of the court, I think, undermines that. So you know, you shouldn't be playing to anyone in the public or any kind of constituency, you know, being happy if you make one segment of the public happy, or, you know, reluctant to anger another.
Then she identifies a risk that people in the limelight know all too well–all that negative press can get to your head!
And then on a personal level, you know, it's just not good to have any of that in your head. Certainly not if it's critical and mean. But even if it's high praise, I mean, like, why should you be reading a steady diet? Or my case, it wouldn't really be a steady diet. But why should you be consuming, you know, flattering, you know, articles about yourself, because on a personal level, I mean, the day that I think I am, you know, better than the next person in the grocery store, checkout line, and you know, is a bad day. So, I would say that I really tried to bracket and put aside, you know, anything, you know, to the extent that I can avoid reading, and if it addresses me in particular,
She admits that coverage of her is not a "steady diet" of "flattering" coverage. Well, no kidding. Still, this remark harkens back to the "partisan hacks" speech. She apparently said that she was "concerned about public perception of the Supreme Court." I say apparently, because no recording exists.
The fact that Barrett is even thinking about this public scrutiny means, well, that the press gets to her head–and that's one of the reasons she chooses not to consume the media. But abstaining from press coverage is tough. There are so many temptations to click. (I, personally, have not checked my Twitter mentions in two years; it is hard). The better answer is to simply say, "I don't care what they write." Period. Full stop.
I am still fond of Justice Scalia's remarks to New York Magazine:
What's your media diet? Where do you get your news?
Well, we get newspapers in the morning.
"We" meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn't handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
And do you look at anything online?
I get most of my news, probably, driving back and forth to work, on the radio.
Sometimes NPR. But not usually.
Or, Justice Barrett can echo her other former boss, Judge Silberman:
Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. . . . Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.
Will Justice Barrett she read this post, for example? It addresses her, but it also addresses the Court. Who knows?
Justice Barrett should be more aggressive at screening out questions in advance. The dedicated professor she is, Barrett has a commitment to answer every question carefully. And when Barrett goes off script, she offers a real stream-of-conscience. And she stumbles into flubs. Remember, the "partisan hacks" line arose during Q&A.
On the plus side, Justice Barrett is the only Justice who listened to the Encanto soundtrack.
Well, first women, so justice Cavanaugh has school aged children. And when the Chief Justice started, he had school aged children. Not sure about anybody else. I'm sure there probably were others too. I am the first woman with school aged children. Well, I was telling a friend recently that I feel sure that the other day before I came into court, I was the only one of the justices who was listening to the Encanto soundtrack. The only one who was walking into the courtroom with like, you know, Bruno, no, no.
Points for singing Bruno.
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