Newest justice lectures on federal equity power, speaks about life as member of Court
Justice Amy Coney Barrett visited Notre Dame on Monday, February 14, to address the Notre Dame Law Review’s Federal Courts Symposium. Her return to campus this academic year follows the visits of Justices Clarence Thomas and Samuel Alito.
Barrett, selected as the Law Professor of the Year by three of Notre Dame Law School’s graduating class, displayed her teaching skills and her love for Notre Dame on Monday. Dean Marcus Cole noted in his introduction that, under Barrett’s direction as editor-in-chief, the Notre Dame Law Review created the Federal Courts issue. Cole explained that Notre Dame Law Review is, as a result of Barrett’s and her successors’ efforts, now the seventh-most cited law journal in the world.
With a humorous tone, Barrett responded to Cole’s introduction, “How could I resist February in South Bend?” She continued, “but it’s speaking at an academic conference, which is a slice of my old life. I’m here at Notre Dame, which I dearly miss, and talking primarily to students, which is something that I love to do.”
This year’s symposium addressed the topic of “The Nature of the Federal Equity Power,” a topic “only a law professor could love,” according to Barrett. Despite the seemingly arcane and technical details of the subject, Barrett remarked that it is of interest to all citizens.
In a comment to the Rover, Notre Dame Law School Professor Samuel Bray explained that “equity is a very old idea, going back at least to Aristotle. It’s the idea that sometimes when we apply the ordinary legal rules, there will be injustice in a particular case.”
Barrett began her remarks by highlighting two different concerns with the law and the art of judging. Barrett summarized the first concern as the perception that law is “wooden and harsh”; therefore, federal judges should have the ability to enact fairness and justice, even if the result directly contradicts the letter of the law.
The second concern is the opposite. Under this perception, she explained, “judges who aim to be fair are throwing off the constraints of the law in favor of exercising discretion that is essentially anti-democratic.”
Out of this tension arises the equity power, defined by Barrett as “a set of rights, remedies, and procedures available to ameliorate the defects of the common law.” Rather than the broad definition so often attributed to equity in contemporary parlance, in law, Barrett highlighted that equity is a specific and technical branch of judicial power.
The equity power in American law derives in origin from the English legal system. In the English government, the king maintained “courts of law” and “courts of equity.” The chancellor acted as “the king’s conscience,” said Barrett. However, America differs because, “in America, the law is king,” Barrett said, quoting Thomas Paine.
Barrett focused on the specific, concrete powers granted to the federal judiciary to rule for equity under Article III of the Constitution and the means for exercising this power in a manner consistent with the Founders’ understanding of law and the role of a judge.
She consistently returned to the idea that judges are no longer “the king’s conscience” as the chancellor was in England, and that “the equity jurisdiction is not a way of smuggling [King] Solomon on to the federal bench where he can just dispense justice as he sees fit.”
In a comment to the Rover, Bray characterized Barrett’s speech as “rich and insightful—including the enduring tension between legal rules and individual fairness.” Additionally, he stated that “it was a great honor for Notre Dame to have Justice Barrett back to visit us.”
During the question and answer period at the end of her lecture, Barrett remarked on her new fame, especially since the internet and social media make pictures of the justices much more visible: “It’s just much more difficult to be anonymous … So, I have found it difficult to get used to that aspect of the job.”
Barrett related a story from her clerkship, when a visitor to the Court walked up to Justice Sandra Day O’Connor and asked for directions, not realizing she was speaking to the justice. Barrett lamented the loss of this kind of anonymity as a member of the Court in the age of the internet.
The justice also articulated her policy on news consumption: although she stays up to date on current events, she maintains a policy of trying not to read any coverage that addresses her. There are both institutional and personal reasons for doing so. Institutionally, federal judges have life tenure “so that they can be insulated from fear of public opinion.”
Personally, she explained, “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 … why should you be consuming flattering articles about yourself? On a personal level, the day that I think I am better than the next person in the grocery store checkout line is a bad day.”
Barrett also praised “the richness of relationships in South Bend” with former colleagues, families, and neighbors, before responding to a question about being the first female justice with school-age children. Barrett laughingly noted, “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. … I think the demands on my life and the ways in which I am pulled and the entertainment and media which I consume are different, but I think there are advantages to that too. I think I have a different perspective, just because I’ve seen a different slice of life. So even though it’s challenging, I enjoy it and I’m trying to treasure the time when they’re still young.”
This is the justice’s second time returning to Notre Dame Law School since joining the court. The Notre Dame Law School alumna and former professor previously returned to teach a week-long course in August 2021 on statutory interpretation, a highly praised class which offered third-year law students the opportunity to defend their ideas before a sitting Supreme Court Justice.
A full video recording of Barrett’s lecture is available at the Notre Dame Law School’s Youtube page.
Zef Crnkovich is a senior from Falls Church, Virginia, majoring in classics. As a dispenser of (often accurate) hot takes, he kindly requests that you please send your hot takes to email@example.com.
Sean Tehan is a senior from Dallas, Texas majoring in political science with minors in constitutional studies and theology. He can often be heard arguing with friends or enjoying the cultural masterpiece “The Office.” He can be reached at firstname.lastname@example.org.
Photo credit: Matt Cashore (used with permission)