In a campus lecture on Saturday, U.S. Circuit Judge Amy Barrett explained the evolution of the U.S. Supreme Court from a relatively ineffective institution to a more powerful and co-equal body of government.
“A few years ago, I taught a seminar in modern constitutional theory, and I had several students who were from other countries in the class,” Barrett said. “One of the things they were very interested in was, ‘How come our Supreme Court has so much respect?’ The president and congress know that when the supreme court of the united states says a statute is unconstitutional, generally speaking, that’s accepted. And that’s not necessarily the case in many countries with newer constitutional courts and newer Constitutions.”
Barrett, who was confirmed in October as a judge for the U.S. Court of Appeals for the Seventh Circuit, has also taught since 2002 at the University of Notre Dame Law School, where she earned her juris doctorate. She teaches and researches in areas of federal courts, constitutional law, and statutory interpretation.
During the lecture, Barrett discussed early chief justices who became disillusioned with the court because of its lack of authority or activity at the time. Oliver Ellsworth, for example, left his job as the U.S. Supreme Court’s third chief justice and his later position on the Connecticut Supreme Court in order to write a newspaper column dispensing farming advice.
The court began to change with Chief Justice John Marshall, however, whom Barrett refers to as one of the “greatest” chief justices in Supreme Court history.
“When he assumed the role of chief justice, he forever changed the court,” Barrett said. “He’s the one who really solidified the court’s power.”
He accomplished this through a well-known case, Marbury v. Madison. Marshall and President Thomas Jefferson were political rivals at the time, and Marshall knew Jefferson had an extreme dislike of the courts. He knew that if Jefferson rejected the court’s judgment, it would deal a large blow to the court, so Marshall took the middle road: he ruled Jefferson’s administration had acted unconstitutionally, but then also stated that the Supreme Court did not have jurisdiction over this particular case.
“Jefferson won the battle, but it is quite clear that John Marshall won the war,” Barrett said. “From then on the Supreme Court became a more powerful institution and a more attractive job.”
Barrett also pointed out that while the current Supreme court has justices who all went to Ivy League, east coast schools, it was unusual in the early days for a justice to have a law degree at all.
She also discussed the chief justice’s power to assign opinions, a task which he can keep for himself, which he often does for the more “blockbuster” opinions, or assign to one of the other justices. Barrett noted that Former Associate Justice Antonin Scalia often published his dissenting opinions because he wanted the law school case books to print them.
“Justice Scalia had a lot of color and flare in his writing, so a lot of his dissents did make it into the case books,” Barrett said. “Even those who disagreed vehemently with Justice Scalia really enjoyed reading his opinions because they are very readable.”
During the question and answer period of the lecture, an audience member asked Barrett if she could share her “most memorable moment” from the time she served as a law clerk for Scalia.
“Justice Scalia was very funny and Italian — he had a great sense of humor and was always laughing,” Barrett said. “My law clerks and I decided to try to have a joke on him at one point. Justice Scalia loved to hunt. He had a picture of himself in camo holding this wild turkey, so one of my co-clerks went and had mouse pads made with this image of Scalia. He didn’t notice it at first and we were all waiting. All of the sudden, we could hear him with his big belly laugh. He was a very good sport about it.”
Several audience members commented on Barrett’s lecture afterward. Vice President of the Federalist Society junior Abigail Allen said it was after Barrett’s confirmation hearing last year when she decided to invite her to campus on behalf of the society. They ended up coordinating Barrett’s lecture with a college visit day for her daughter.
“The confirmation hearing certainly made a slash in media, with democrats being actually really quite atrocious to her and questioning whether she can be a faithful Catholic and also be a faithful judge,” Allen said. “But I think what really stood out in all of it was her poise and her ability to respond to all of that response to that in a way that was rational and put-together. So not long after that I sent her an email and invited her to come up to Hillsdale.”
Freshman Madeline Peltzer said she has been interested in law school for a long time and was inspired by both Barrett’s intelligence and humility.
“The first thing I noticed was how personable and open she seemed,” Peltzer said. “It wasn’t at all lawyerly talk or super highfalutin or like a whole other language. She was very down to earth.”
Freshman Braden VanDyke said he appreciated Barrett’s point about how chief justices shaped their respective courts almost through personality, rather than through legal power over the other justices.
“I had an understanding that they were from a legal standpoint all on the same plane, but I liked that she highlighted and accentuated the personality that they brought in, and how their style changed the way the court operated.”
Professor of History Paul Moreno also commented on the relationship between justices on the court.
“Conservatives especially have complained about the ways in which conservatives get appointed to the court and they end up becoming less conservative,” Moreno said. “There are various explanations for this. Mostly it’s that these people have to work together. It’s not like Congress where it’s 400 people or the one person who is the president. The Supreme Court has a unique sort of small group psychology to it.”
