Josh Blackman | 9.18.2025 11:35 PM

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........

© Reason.com