Good afternoon. Thank you for being here. My name is icertis Allah Puga. I'm the editor in chief of the Notre Dame Law Review. Welcome to the Notre Dame Law reviews federal courts Symposium on the nature of federal equity power. Before we begin, please note that first no photos, videos or audio recordings are allowed. Second, the keynote will be followed by a question and answer period. You're welcome to submit questions by scanning the QR code on the cards in front of you. We are honored to have as our speaker Associate Justice of the Supreme Court of the United States. Amy Coney Barrett. The current volume of the Notre Dame Law Review marks the 25th anniversary of justice Barrett's tenure as his as executive editor of the law review when she was a student here. And that role, Justice Barrett laid the foundations for the federal courts issue, which is one of the larger views five annual issues, and dedicated specifically to topics in the area of federal courts practice and procedure. It is my honor to welcome Dean Marcus Cole of the Notre Dame Law School who will introduce justice Barrett, Dean Cole.
Thank you nice to thank you all for being here. And welcome to Notre Dame Law School. I finally get to introduce justice Amy Coney Barrett. And I say finally, because there was a moment about 18 months ago, where I thought I might have a chance to introduce her to a group of people who wanted to meet her. They call themselves the Senate Judiciary Committee. But I wasn't chosen for that introduction. Instead, my very good friend, Dean, Patty O'Hara was chosen for that introduction and did a fabulous job better than I could. But the good news is that I was able to return the bow tie that I bought for that occasion. So you all know the story of justice Barrett, you know, that she is a legend was a legendary student here. You know that as a teacher, she's a legend here at Notre Dame having won the Teaching Award at Notre Dame three times. And in fact, I think they enacted term limits for her to keep her from holding the the honor permanently. But what you might not know about her is that she was in fact as a student 25 years ago, the executive editor of the Notre Dame Law Review, and we are here today, because of the movement that she started by creating the federal courts issue of the Notre Dame Law Review, which is now I'm happy to say the Notre Dame Law Review is the seventh most cited Law Journal of any kind in the world. And that's a testament to the legacy that she left us and the students that have followed her. So without any further ado, I'd like to introduce the 100 and fourth Associate Justice I'm sorry, 100. And third Associate Justice of the United States Supreme Court and then 100 and 14th, Justice of the Supreme Court Justice Amy Coney Barrett.
Thank all of you, and thank you, Dean Cole. It's really good to be home. When the law review extended this invitation, how could I resist February in South Bend. But it's speaking at an academic symposium, which is a slice of my life. I'm here at Notre Dame which I dearly miss, and talking primarily to students which is something that I love to do. So in all seriousness, I am very happy to be braving the perma cloud and the freeze freezing cold to be here with you. So the law review staff with the help of professors Bray and Miller have put together a remarkable symposium and a surprising one. They told me last night that this is the first ever Symposium on federal equity powers that true Professor Bray and a bit of a challenge to deliver a keynote address about the federal equity power I will say because let's be honest at first blush, the topic of the federal equity jurisdiction sounds like one only a lot professor could love it. involves the merger of law and equity, the Court of Chancery 1000s of years of history. And none of this is known for keeping law students, much less anyone else on the edge of their seats. But take a step back. If you consider it more broadly, the relationship between law and equity is of interest to us all, even to non lawyers. At root, it's about the tension between the demands of the law, which constraints and the demands of fairness, which is flexible. That tension permeates almost every area of our law. And it's particularly acute in the context of the federal courts, which are courts of limited jurisdiction. For the non lawyers in the room, that means they have limited authority to act. Here's an anecdote to illustrate my point. So last summer, I spent an afternoon with a beloved aunt, she and I see things, many, many things differently. But we're very, very close. And she's not a lawyer, but she started following the Supreme Court closely after I joined it. And one of the things she said to me that day, is that she was disappointed in our decisions. Because she said, these decisions from the court are driven by legalities. But I thought the court was supposed to be above dispensing justice. And instead, you guys are just caught up and all of this law. I get the sentiment. When we think about courts, when we think about doing justice, and hopefully courts are synonymous with doing justice. We don't exactly think about opinions on standing or sovereign immunity. Our thoughts are much more likely to drift to stories like the story in the Old Testament of King Solomon and the two women who claimed the same baby and a brilliant if high risk strategy. Solomon decides that incorrectly judges that if he says that he will divide the baby in half the woman who is the true mother will step back rather than see the baby die. And fortunately for the baby Solomon was right. Because he managed to crack the case, the Old Testament memorializes This is one of the examples of Solomon's great wisdom. But note that Solomon's wisdom is something that came from within him. He did not consult principles of tort law, and there was plainly no limit on his remedial authority. And it's this wellspring of inner wisdom that renders Solomon one of the great law givers of history who appears on that one of the freezes in the Supreme Court's courtroom. Deep down anyone in mired in a legal dispute or any kind of dispute, desires that it be resolved according to principles of fairness. To have a judge who pierces the niceties of the law to do what's equitable, that's the sentiment that my aunt was expressing.
But of course, the federal courts are not staffed with armies of Solomon's and those who framed and ratified our Constitution and their collective wisdom, deliberately checked the authority of federal judges to be free willing dispensers of justice. So consider what James Madison said in Federalist 51. If men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this you must first enable the government to control the governed, and in the next place, oblige it to control itself. Judges I'm sorry to admit, but no, my family would agree are not angels. And so in our democratic republic, judges do not function like some of the judicial greats who appear with Solomon on the walls of the courtroom and the Supreme Court. That's a group that includes Hammurabi, Moses, Confucius and King Louie the ninth. And as with Solomon, wisdom, the ability to discern the just results resided within them, either through their own talent, or in some cases through divine inspiration. In the case of these judicial greats, the law and the person were intertwined. Get back that's not how it works in our democratic republic, and rightly so. Federal judges do not dispense justice solely by their own lights. We are a government of laws, not of men or of women. As Tom Paine put it in America law is king. Federal courts are constrained by law that mostly emanates from somewhere else like the Constitution legislation. Plus, when it comes to adjudicating disputes, federal courts cannot take all comers. And that's a distinction between us and Solomon and his companions. Our jurisdiction is limited so that we can only exercise the power that we've been given. But, and if there were no but there would be no symposium today. The federal courts have been given equitable power. Equity is concerned with fairness and justice. And it's a tool that federal courts have long used and other courts to right wrongs when there was no adequate event remedy available in law. Article Three of the Constitution provides that the judicial power of the United States extends to cases in law and equity. The Judiciary Act of 1789 acted on that grant right away, and he gave federal courts jurisdiction over suits in equity, in addition to suits at law. So at this point, you might have whiplash because I just finished emphasizing that federal courts are constrained by law. And now I'm reading you a provision of the Constitution that might sound to you like federal courts have jurisdiction to go forth and adjudicate cases in fairness. So which is it restraint or flexibility, hard and fast rules or equitable principles? Well, it's both. And even though these concepts are admittedly intention, they do coexist in Article Three and in our law. That tension between them is reflected and one of the central debates about the federal equity power. How does it fit with the principle that federal courts are constrained by law? Can federal courts just make up the rules when they hear suits and equity? Or do the rules come from someplace else? Now, before we launch into considering these questions, I want to emphasize that the equitable jurisdiction of the federal courts is not a power to do what is just it's a specific branch of the law. So it's not a general freewheeling grant, as you might fear just from hearing the language that federal courts should just go forth and adjudicate cases as they see fit. Equity is a specific branch of the law and a fairly technical one of that. And that's what this symposium is focused on. Now, I'm going to give you a bird's eye view of it. But the room might clear out if I devoted this talk entirely to the ins and outs of federal equity jurisdiction in practice, sorry, professors braid Miller. So instead, I'm going to use the equity jurisdiction of the federal courts to address important themes that run throughout all the law of federal courts.
One theme is the one voiced by my aunt in that conversation last summer. And that theme is that the law can be wooden and harsh. So federal judges should have the ability to soften it to do what's fair, even if the law sensibly desired requires a different result. On the other hand, a concern runs in the opposite direction, that judges who aim to be fair, are throwing off the constraints of the law in favor of exercising discretion that is essentially anti democratic. So when you look at this tension in Article Three, you can describe it either as a love hate relationship with equity, or a love hate relationship with law, it just depends on your perspective. So this afternoon, I'm going to address these themes. And first, I'll talk about it in the specific context of the equity jurisdiction. And then I will shift and talk about it in the more familiar context of constitutional interpretation. So first, the equity jurisdiction. In a general sense, equity means fairness. But in a law school classroom, we might use it in a more technical sense to refer to a set of rights, remedies and procedures available available to ameliorate the defects of the common law. This is a very specific power. This is where it gets good and really interesting that traces back to the Court of Chancery, which was headed by the Lord Chancellor, the king's right hand man, and it was known as the court of the kings conscience, a place for litigants to come when the common law was too harsh. Predictably and consistent with today's theme, Common Law Courts didn't like it when they perceived chancery as exercising too much jurisdiction, jurisdiction that eroded the power of the Common Law Courts. and eroded or overrode the legal roll legal rules that the Common Law Courts enforced. And the Chancery Court Justice was up to the King who could be arbitrary and doling it out. This uneasy coexistence of lon equity carried over to America. Equity, given its roots was associated in the public imagination, with royal prerogative judicial overreaching, and standard LIS discretion. As one historian put it, it was not easily forgotten that the Court of Chancery was the twin sister of the court of the star chamber. Now that has both had been born from the king's Council. While equity gave courts the freedom to make up for the lacks of the courts of law, the discretion that invested in courts could also easily be abused. So some regarded equity as quote, a roguish thing. Consequently, many colonies and then states altogether refuse to set up Courts of Equity for fear that they would abuse their power. Americans didn't want a king, and it was the king who had been behind the Court of Chancery and the king who had abused the power. Remember the words of Thomas Paine and America laws king. And yet the need for equity persisted. The common law and its rules were preeminent in America. But there was still a need for the safety valve of equity when the law provided no adequate relief. To make the equity power concrete, let me give you some examples of it so that you know what it is we're talking about. The first is promissory estoppel. And agreement is generally not legally enforceable until it satisfies the basic requirements of offer acceptance and consideration. And if there one else in the room, I apologize if this is giving you flashbacks to your finals. And it's important to maintain those requirements so that everybody knows the rules of the road, okay, the rules of the road for forming valid contracts and when they're enforceable, yet, equity steps in to do justice and enforce some promises that don't meet those requirements. If I act in reliance on a promise that someone else made, and she reasonably expected that I would rely on her promise, then she can be held to it. In other words, if one person induces another to rely on her promise, well, then it's only fair to hold her to it, even if all the boxes of contract formation haven't been checked.
That's an example of an equitable, right. Here's an example of an equitable remedy, and injunction. So the traditional legal remedy for wrong is money. So the wrongdoer has to give you dollars to make up for the damage that he caused. But there are some harms that money doesn't fix. If someone is trespassing on my property by building some sort of structure on it, I don't really want money so that he can essentially engage in a forced sale of my property and pay me and then keep on going doing what he's doing. I want him to stop. What I want is an injunction that will forbid him from continuing the trespass and continuing to erect the structure on my property. Without equity, I could not have obtained that sort of remedy. So you might find yourself nodding along and thinking, what's the big deal? Both of these things are things you learn about and law, they seem fair, and the law wouldn't work well without tools like these. And that is all true. And it's the need for these kinds of equitable rights and remedies that is behind the grant of extra equitable jurisdiction that made its way into Article Three. Despite the founding generations unease with some of the discretion conferred by equity, these kinds of needs to address these kinds of problems made equity a necessary feature of our law. Without it, courts couldn't deal with the kinds of situations that I just described to you. Still, because the founding generation was skittish about it. There was a debate about it. It was in Article Three, but still, our courts were structured differently than the courts in England. And anti Federalists in particular, criticized the grant of equity jurisdiction on the grounds that it would risk judicial abuse. So Alexander Hamilton in Federalist number eight attempts to reassure critics that the equity power had limits. So Hamilton insisted that it builds upon a body of well developed principles regarding the formal and technical distinction between law and equity, as the distinction is no and established in several of the states, and where that distinction is exemplified by everyday practice. This passage recalls his more famous general pronouncement in Federalist number 78, where he said to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. That was true in equity, Hamilton was saying, as it is in law. Another words he was saying that equity isn't as dangerous as the anti Federalists had feared it wasn't the Wild West, it wasn't open for people to do whatever they wanted to do. Instead, there was a body of law, well developed that constrains judges. Justice story, who was writing in the 19th century took a similar tack in his famous Treatises on the UK on equity jurisprudence. He began his treatise by rejecting this idea of unbounded equity, power, and unbounded power, he said that would be capable of freeing itself from all regard to formal rules and precedents. Because if in fact, equity were to be so gigantic and its sway, it would amount to the most formidable instrument of arbitrary power that could well be devised, and story went on to invoke a memorable criticism of equities, arbitrary nature.
If, in fact, equity was as gigantic and its way a story was positing a Court of Chancery might well deserved the spirited rebuke of the English jurists, John Selden, for law, we have a measure, and we know what to trust to. But equity is according to the conscience of him that is chancellor and is that as the larger or narrower so his equity is all one as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure that would be one Chancellor has a long foot, another a short foot, a third and indifferent foot. And it's the same thing with the Chancellor's conscience. So Alexander, Hamilton and justice story are hitting on the same theme here. The equity jurisdiction is not a way of smuggling Solomon on to the federal bench where he can just dispense justice as he sees fit. As much as we might admire Solomon, he would not make it through a confirmation hearing. If he described his judicial thought philosophy as going forward to do justice deciding cases consistently with his conscience. The equity jurisdiction Hamilton and story were assuring people was instead a body of rules and precedents, history, tradition and precedent are what checks the federal courts equity power. That might sound abstract. So let me give you an example. cases involving the bounds of the federal courts equitable authority don't exactly crowd the Supreme Court's docket, hence the very first symposium on the federal equity power. But consider this one. This is a dispute between I'm going to describe the dispute between the majority and the dissent in a case called Grupo Mexicano, which the court decided in 1999, back when I was a law clerk at the Supreme Court. So this case involved a dispute over the debts of a failing Mexican company. And the details are not important for present purposes. All you need to know is that the plaintiffs who are investors in the company asked the trial judge for an unusual form of relief. They asked for a preliminary injunction that would prevent the company from transferring assets that could be used to satisfy the debts. The company argued the federal courts lacked the equitable power to issue this relief. And they took the case all the way to the Supreme Court, which ultimately agreed with the company in a divided decision. Now, notably, all nine justices agreed that history did not directly support this kind of injunction. It was a new kind of relief, and it did not have there was no precedent of it being traditionally awarded in equity for the majority. That was the end of the story. As Justice Scalia explained, in his opinion for the court, the Judiciary Act authorized federal courts to exit to exert traditional equity power as it existed at the time of the founding. And because equity courts undisputedly did not issue this kind of injunction, then the federal courts lacked the power to do so now. There might be competing policy arguments for and against the value of such an injunction. Such a powerful new form of relief, but the court disclaimed the authority to do and Justice Scalia's words, what amounted to crafting a nuclear weapon of the law in the name of equity. By contrast, Justice Ginsburg's dissent rejected the static view of the equity power. And she emphasized the flexibility of equity to reach adjust results. Although equity courts had not traditionally issued this kind of preliminary injunction, Justice Ginsburg said, This just might reflect a reduced historical need for that kind of urgent relief. At a time when debtors could not dissipate assets as quickly as they can, with modern technology. The dissenters would have approved innovation to achieve what seemed like the practical and fair result in light of these changed circumstances. So that is that would have honored the principles of traditional equity, but at a much higher level of generality than the majority. This case, the disagreement between the majority and the dissent reflects, again, the old tension between law and equity. When you read the opinions and Grupo Mexicano, you see, Justice Scalia and Ginsburg, just repeating the theme that we just heard, and the readings that I read to you from Justice story and Alexander Hamilton, all are striving to reconcile the existence of the of the equity power with the otherwise limited power of Article Three courts.
And if this dispute about history, and its role and restraint, restraint on the one hand, versus flexibility on the other static law versus evolving law, if that all sounds familiar to you, it should, because it's the same dispute that we see in a context that's probably more familiar to you the context of constitutional interpretation. So let's turn our attention there for a moment. It's no secret that judges and scholars differ today on the right way to interpret the Constitution. I want to focus on one aspect of that debate between two schools of thought that I'm just going to call pragmatism and formalism. On one side, pragmatists tend to favor broader judicial discretion. They interpret the Constitution at a high level of generality that leaves judges more free, there's more room to move to pursue justice and the broad purposes embodied in the document. Think of it as a kind of equitable interpretation. The selling point for this approach is that it better equips judges to find practical solutions to problems, then does a methodology that risks being wooden AI, one that focuses more on the text and the history of the provisions? My colleague justice Brier is a prominent advocate of this approach. On the other side, our Formalists, like my old boss, Justice Scalia, and formulas tend to seek constraints on judicial discretion. And they favor methods of constitutional interpretation that demands close adherence to the constitutional text, and to history and tradition. Weighing things differently from pragmatist's formalist believe that the dangers of judicial willfulness exceed the dangers of judicial woodenness. And they point out that the courts exercise of judicial power would not be legitimate, if it merely imposed the Judiciary's own value choices and constitutional cases, or worse if it pretended to have a theory of constitutional interpretation, but was actually just following its own conscience. So as I said, this is a debate with which you in the room are likely familiar formalism versus pragmatism originalism versus the living Constitution, it goes under different names. But what I want to emphasize for present purposes is something that you might not have noticed before. And that's the echo of equity. So as we just discussed, the debate between equity supporters and equity skeptics, is about the virtues of flexibility and fairness on the one hand, and the virtues of the rule of law and constraints on the other. It's a debate that we seem to be unable to escape in the Anglo American tradition, given that it's been going on since the rise of the chancery court in England. And fact, Brutus, and anti Federalist number 80, anticipates this debate about constitutional interpretation and he ties it to, appropriately enough the grant of equity jurisdiction and Article Three. Brutus says that this grant of jurisdiction will do more than just enable federal courts to sit as Courts of Equity in the traditional sense I was just scribing a few moments ago, Brutus says that this jurisdiction this equity jurisdiction, is going to tempt courts to treat the equitable power as enabling them to explain the Constitution according to the reasoning spirit of it, without being confined to the words or letter. And unsurprisingly, Brutus did not welcome this potential development. He thought that the risk of the courts embrace of this kind of equitable jurisdiction would aggrandized judicial power and inhibit the people's ability to rule themselves. Given that, given that tie, actually to the grant of equitable jurisdiction in Article Three in the debates about constitutional interpretation, I think it's fair to say that we can consider the debate about the federal equity power to be the sister of the debate about constitutional interpretation. So what if anything, can the former tell us about the ladder? I'll offer you this thought. When Americans ratified the Constitution, they rejected the king and his chancellor to
the grant of equity jurisdiction in Article Three does not create new Chancellor's representatives of the kings conscience, say sitting in the Southern District of New York, or on the United States Court of Appeals for the 11th circuit. That is why as Justice Scalia said, and the group of Mexicano case that I just described to federal courts exercise the equitable power as it existed at the time of the founding, equity jurisdiction gives federal courts access to a body of law. It does not empower federal judges to be lawmakers. So too, with interpretation. The point of the Constitution and its system of separated power is for the people to govern themselves, and federal judges have only the power that the people have given them, and matters of interpretation. That means fidelity to the text that the people adopted to stray beyond that, even in the interest of flexibility and fairness. oversteps bounds that simply did not constrain the English Chancellor. And this foundational point is one on which judges of all interpretive stripes agree. Last term the Supreme Court unanimously held in a case called Terry versus the United States that the petitioner Mr. Terry was not entitled to the benefit of a statute that was designed to retroactively fix the crack cocaine disparity. And Justice Sotomayor, who would certainly place yourself more on the pragmatist than the formalist side of the interpretive divide had this to say in a concurrence. There is no apparent reason that career offenders like Terry should be left to serve out sentences that were unduly influenced by the 100 to one crack cocaine ratio. Indeed, the bipartisan lead sponsors of the first step Act have urged this court to hold that the Act makes retroactive relief broadly available to all individuals sentenced for crack cocaine offenses before the Fair Sentencing Act ameliorated that disparity unforced. Unfortunately, Justice Sotomayor says the text will not bear that reading. Fortunately, Congress has numerous tools to write this injustice. So where the text is clear, everyone agrees that judges hands are bound, that judges don't have the ability to step in and always ameliorate unjust results or unfairness. And that passage I just read, you know that Justice Sotomayor concludes by saying that Congress had the ability to remedy the injustice. That's where the remedy lies, not with Chancellor's but with Congress, because judges have no authority to override the law in the interest of justice. Now, while formulas and pragmatist agree on this foundational principle, they don't always agree on how it applies in individual cases. And that's why there's a debate about constitutional interpretation. That's why you've heard of it and are familiar with it. So in particular formulas and practice that pragmatists disagree about what the text permits, or requires, in particular instances, pragmatist seeking more flexibility in the law, tend to interpret at a higher level of generality, where judges have more room to move Formalists and I'll put myself in this category, emphasize text and history in the interest of emphasizing fidelity to the rule of law. Now the justifications and critiques for these competing schools are beyond the scope of this lecture, but you're going to hear them over the course of law school. And as you weigh them, I encourage you to think back to the debate about the equity jurisdiction of the federal courts, there will be individual cases in which you will long for a chancellor, at least if that Chancellor sees the world as you do. And so you may desire to make the law as flexible as possible to let the chancellor in. But what if the chancellor doesn't see the world as you do? Is that discretion really what you want federal judges to have? The Constitution does not create Chancellor's and its dictates cannot be measured by each judges conscience. As the famous critique goes, what an uncertain measure this would be, for one Chancellor has a long foot, another a short foot, a third and indifferent foot, and it is the same thing with the Chancellor's conscience.
I began with images of some of the great law givers who appear in the freezes in the Supreme Court courtroom. And I'm going to end by leaving you with the image of two larger than life statues that appear outside the front of the Supreme Court at the top of the steps. To the left of the entrance. It's a female figure known as contemplation of justice. The statute sculptor James Earl Frazier described this figure as a realistic conception of what I consider a heroic type of person with a head and body expressive of the beauty and the intelligence of justice. This statute reminds me of equity. To me, this statute represents our laws, aspiration to fairness and justice. To the right of the steps is a male figure known as the authority of the law, or guardian or executor of law. Fraser, the sculpture described this figure as powerful, erect and vigilant. He waits with concentrated attention, holding in his left hand, a tablet of laws, backed by the sheets, sword, symbolic of enforcement through law, and the Latin word for law, Lex is inscribed on the tablet that he holds. This statute reminds me of law. We want both in our system. And most often, the law itself is what delivers justice. But when it doesn't, it's up to you as the people to change it. Law and equity sit the steps of the court, as they do in the law books inside it. Both present, sometimes pulling in opposite directions. That is all that I have for you today. But I welcome your questions.
As indicated in the outset, there are cards for you just submit questions, and I will put your questions to justice Barrett, we received an anonymous question that goes as follows If equity could be shown at the time of the founding, to include the power to craft new remedies. Would that make Justice Ginsburg a better originalist in group?
I might invite Professor Brady to come up and answer that one. Well, I think that is the dispute that is the dispute between Justice Scalia and Ginsburg, in that passage, it's about whether the grant of equity jurisdiction includes a power to reason by analogy to innovate, or simply to take the body of law as it existed then, and not innovate and leave innovation to Congress. I guess I won't weigh in on which would be the better originalist or if Justice Ginsburg was necessarily trying to be an originalist in that sense. But I think it's always difficult. It's always a challenge to try to figure out the right level at which level of generality at which to read the history. And I will confess that I didn't choose to be the clerk who worked on Grupo Mexico. For a reason if I had known that I would find myself delivering a lecture that was relevant to grip on Mexico today, I would have thought, why on earth did you agree to that? Because it seemed to me very technical and arcane at the time.
Okay, well, let me ask you a technical question then. So another anonymous question asks, If equitable discretion can cause variances among circuits, do you think this is a harm or a benefit to our Federalist system? And then let me add what is your view about national injunctions As a district court judge.
Okay, so I'll take a pass on the national injunction question. Because that is one that could come before me Dinkle. You're making me feel like I'm in front of the Senate Judiciary Committee? I'm a question of splits between circuits. I will say that I think most of the splits between the circuits that might result from what we think of equitable discretion, I would think, arise more often in the context of interpretation, rather than this narrow technical category of equitable jurisdiction, because obviously, there are different philosophies, but but even those who are practitioners of the same methodology of interpreting statutes or constitutional provisions, will not always reach the same result. And there's one thing about which I want to be very clear, even though Americans have always had anxiety about judges having too much discretion. And even though now our debates between, you know, people who take various approaches to the equity jurisdiction, like say, Justice Ginsburg, and Scalia and Grupo or people who debate about, which is the best way to interpret the Constitution, or statutes concerned about discretion is present in those, but no one would maintain that discretion is absent from the business of judging. It's an inherent part of judging, and that's just an escapable. So judges aren't automatons. I mean, it's not like AI, at least to this point, has replaced the job of judges. So discretion is always present, and no one should or if they ever tried to tell you differently, you know, I have some, you know, land to sell you to discretion is always present in judging and and where there is room for judgment and discretion. There will be disagreement, and hence, we have things like circuit splits.
We have a question from a law student, Joseph Graziano chancery allow for the development of new remedies.
chattery allow for the development of new remedies as the need arose. And this seemed to be necessary for the exercise of equity. How limited is federal equity power to traditional remedies?
Well, I think that's the dissipated dispute and Grupo and so what the majority held in that case is that it was limited to the traditionally available remedies. And as I understand it, and I want to be clear that I'm not an expert in the federal equity jurisdiction, that when I was a professor, that wasn't my particular area of expertise. So I do encourage you to ask, you know, others who do have expertise, like professors, you know, Ray and Miller and attend some of the panels at the symposium today. That is the dispute between Justice Scalia and Ginsburg, the majority held that it was limited to the body of law that existed at the time that Article Three was ratified. And I think the reason for that the theory of that would be that, as I as I said before, Article Three in granting equitable jurisdiction did not create Chancellor's it gave federal courts access to a body of law. And remember that in England, the Court of Chancery, as I said that the Lord Chancellor was the king's conscience, there was no separation of power. The Court of Chancery was an arm of the king and arm of the executive. And the American system is obviously different. We have a system of separated powers, we have independent courts. And so in our system of separated government, even though federal courts have access to this body of equitable law, equitable rights, equitable remedies, we also have Congress as the primary engine of developing rights and remedies. So I think it would be inaccurate to try to characterize federal judges as similar situated to Chancellor's.
So we have another anonymous question. Is state sovereign immunity, formalist or pragmatic?
straying from the Federal equity power? Let's see, I think state's sovereign immunity. That's a complicated question, because when you look at the 11th Amendment, I mean, those of you have taken federal courts know that it's an intensely complicated area, because it cannot all be derived simply from the text of the Constitution. And so some have argued that in fact, state sovereign immunity is not originalist or that is not a textualist not faithful to a textualist interpretation of the Constitution or an originalist account of the interpretation of the Constitution. Others obviously disagree with that and say that, you know, the Constitution was ratified against a backdrop of such I've earned immunity. So I think you would find no clear agreement on that point. I think it would depend on who you ask and it probably wouldn't be a compliment. If people described it as pragmatist.
Question from Professor Julian Glasgow, is this federal equity require particular drift Prudential theory?
No, the Federal equity power plainly exists because Professor Glasgow didn't? Well, Professor of Alaska will answer your question anyway. The Federal equity power plainly exists by virtue of the grant in Article Three, and in the Judiciary Act of 1789. So it's, it's present regardless.
So you don't have to submit questions under your own name. And
it could have been much better than that. If somebody pretended to be a professor of Alaska, you could have gotten more creative.
So I'll ask you another anonymous question. So a lot of the questions want to know about your career and your personal experience. So one of the questions is, how did your experience clerking on the Supreme Court prepare you to become a judge and then ultimately a justice?
I think of it as an apprenticeship. So in clerking for Justice Scalia, I spent a year and judge Silberman who proved my clerked on the DC Circuit before that, you know, I spent a year at each of their elbows, watching how they did the job, how they ran their chambers, you know, their their process for thinking through a case. And so I guess, you know, because I'm a mom. And I think about these things in these terms. It those of you who are parents, or one day, if you become parents, you might think about the fact that your own parents become the model against which you reject or adopt things. Like you say, I like how they did that. I don't like how they did that. But that's kind of the baseline of what you know. And I think in some respects, you know, the judges for whom I clerked for that baseline for me, they were the only people who are close and personal, I got to see the practice of judging. And so that was the model. And I don't do everything exactly the same way. And the way that I run my chambers and the way that I think through cases, but it was my opportunity to see how the process worked. And I will say that it was incredibly valuable to me, when I began to at least have a working knowledge of how the inside of the court works. I read the biography of Justice O'Connor first, which I recommend, too, it's it's a really great book. One of the things that describes is when Justice O'Connor began at the court, there were just reams and reams of cert petitions of the paper just dumped at her chambers. And nobody told her what to do. Nobody told her what the process was of working through cert petitions. And her task. I mean, if I feel you know, when I feel sorry for myself for the learning curve and getting up, I just think about Justice O'Connor, who that was, you know, the first time she had been on the inside of the building like and running and chambers, and no one was around, and no one was helping her. And so there's certainly a lot that I've had to learn and a lot has changed since I was a law clerk. But I feel like knowing some of the vocabulary and having some exposure to things like the cert poll and cert petitions has at least made it slightly more manageable.
We've got another anonymous question about the transition from being a circuit court judge on the seventh circuit to the Supreme Court. How is that different? How's your life different as a Supreme Court justice,
and lots and lots and lots of ways? 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.
So there's a related question that asks your your published opinions are now now having an immediate national audience, including many people who are not trained in law, does that change the way you write?
That is very interesting question. I tried to write my opinions to be accessible when I was on the Seventh Circuit as well, because even though they didn't have a national audience, they had the audience of the people, the litigants before me, you know, for whom the case was important. And so I wanted to make them as accessible as possible, you know, to those who are interested in the case interested parties in the case. I mean, the reality is that legal concepts can be difficult to make accessible to non lawyers. So there's only so much you can do if you're talking about ERISA. So I do try to make them as accessible as possible within the limits of what you can do when you're just talking about the law.
So it was very powerful when you said that the ratification of the Constitution rejected the king and the king. She has sort of one question here, as you said that Article Three did not create Chancellor's is the Chancellor's role as the king's conscience relative to a relevance to the President's executive power on earth to
that is not a question that I've thought about before, I would say I think I would revert to what I said before about the blending of power in the English system and its separation and our system. It shouldn't be relevant to the executive power, and so far as we might think of the Chancery Court as exercising judicial power, because the judicial power and the executive power are not intertwined in our system. However, you know, one obvious way in which the executive can temper the harshness of the laws through pardons. And so I think we could look at that and say that even though there is no chancery court that the executive controls as the king once did, the executive has a powerful tool at his disposal for softening what can be a harsh result in the law.
So a second year student asked, is it relevant, that the equity power in England developed against the backdrop of a sovereign Parliament as opposed to a system with an entrenched constitution?
Yes, of course, that would be relevant, because I think that the soil in which equity grew up like when you transplant it, it's not an even match, because our system is so different. We don't have a parliamentary system, you know, and we have separated power. And so I think to really understand equity, that's why there's so much history involved in equity. You know, to really understand equity, you're diving deep into that system. But I think you always have to remember that the transplant can't be one to one, because our systems are different.
A question here from an anonymous questioner afraid to ask it, actually,
Professor Velasco again
I'm not even sure you should answer this. So the question is, do you read SCOTUS blog or do your clerks?
I am quite comfortable. 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. 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, there are
two related questions, one from Isabel Osinski, that asked, How did Notre Dame Law School and specifically its Catholic mission, impact your career as a lawyer, a judge and adjust this? And then the related question is, what does it mean, as our motto says, to be a different kind of lawyer?
Let's see, I think the what Notre Dame does really well. And what is distinctive about Notre Dame's mission is that it aims to educate the whole person. You learn law students, in the context of a community of great concern that has great concern for one another Dean Cole is telling me some remarkable stories about different things students have done for one another, and others in the greater university community last night. And I think that there is a great temptation and you see it in the legal profession, when you look around to become very self focused, very focused exclusively on ambition and on one's career to the expense of other. And, you know, let's face it more important commitments in your life, you know, to family, you know, to your faith to the common good. And so I think that to the extent Notre Dame accomplishes, instilling in each of its graduates, you know, including in me, the sense that your career is one aspect of your vocation, you know, that law is just one piece of your life and that you take it and you pursue your career as part of contributing to the common good, contributing to society, to doing you know, your part as lawyers to contribute to the enterprise of seeing justice done. I think that Notre Dame and being a different kind of lawyer produces those different kinds of lawyers. Because that is the focus of the school
are much of personal questions that want to know what it is you miss about South Bend what it is you miss about no RAM? I don't even want you to answer that question. Because you're welcome to teach here as, as long as I still have the keys to the beat. So but what is it has changed about your wife? Since moving Washington? What do you miss about South Bend in Notre Dame?
Oh, I miss so much. You know, when I was here in August, teaching, I had only been away we had only just moved and so it's a little bit different. This is the first time I've been back since August. And it's just painfully clear to me I was telling Angie Cole last night, it's, you know, painfully clear to me how much I miss the community here. How much I miss, you know, the, the friendships, I missed the law school. And you know, the friendships that I had in the university committee and in South Bend, I spent time with a neighbor yesterday from my old neighborhood. And I think there's a richness of relationships that my husband and I had and our children in South Bend that are facilitated by the size of South Bend, you know, despite South Bend drawbacks, I think it's a great place to raise a family and to develop relationships with other families. And that's just a little bit different now. It's also a little bit different. I like being at Notre Dame and in South Bend where people know me but knew me before I was just a spirit. It's now now when I meet people, it's under kind of different circumstances. So I'm very much glad that you're willing to have me back at any time because I do very much miss my life here.
One last question again. and personal. It refers to the fact that you're the first justice to have school aged children. What is your wife like? Having school aged children while you're on?
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. So I think the demands on my life and the ways in which I am pulled and you know, the the entertainment and media, which I consume are different than the average colleague of mine. But, you know, I think there are advantages to that, too. I think I have a different perspective. Just because I'm seeing a different slice of life. So I mean, it's certainly challenging. In South Bend, one of the virtues is if you're a two working, parent, family, everything is close. And so you can zip back if my kids had a pediatrician appointment, or somebody got sick at school. None of that is as manageable there. Fortunately, my husband is currently working out of our home. So he has a little bit more flexibility. So it's, it's challenging. I mean, they won't be young forever. So even though it's challenging, I enjoy it. And I'm trying to treasure the time when they're still young.
Well, I want to welcome you home and thank you so much for this. Thank you
