About a law enacted by the peoples representatives, that has gone through the process, a constitutional ratification, it must go through the lawfully prescribed process before it is changed. Presentmentive or in the context of statute, and its not up to judges to shortcircuit that i updating the law. That is your job. Laws are clearly written in a context and the circumstances to which those laws apply would change. Does the Fourth Amendment have nothing to say about cell phones . Unreasonable search and caesar was not written at a time when they imagine mobile technological devices that addicted our kids. Does the Fourth Amendment have nothing to say about cell phones . The constitution, one of the reasons its the longest lasting constitutions in the world is that its written at a level of generality specific enough to tech to protect rights but general enough to be lacking. When you are talking about the constable banging at your door in 1791 as a search or seizure, we can apply it to cell phones. So the Fourth Amendment is a principal that protects against unreasonable searches and seizures, but it does not catalog the instances in which an unreasonable search or seizure could take place. So you take that principle and apply it to modern Technology Like cell phones or what if technical advances allow someone with xray vision to see in your house . Theres no need to knock on the doors and go n. That could still be analyzed under the Fourth Amendment. Sasse this is a good place to explain what originalism is and say it is a republic republican position. Its not part of a policy provision between republicans and democrats. Its something for useful something useful for three branches of government. Maybe its useful to back up and say when you define yourself as an originalist, what does that mean and how is it going to relate to that distinction theeen the principles that applications are clearly going to change my circumstance . Judge barrett original as a means you treat the constitution as law because it commits these tests to writing and interpreting that law, you interpreted it with a cord to the meaning people wouldve understood it to have at the time it was ratified. The reason you do that is because otherwise, the law stays the same until it is lawfully changed, otherwise judges would be in the Constitutional Convention business of updating the law rather than allowing the people to take control of it. In the case of the constitution, many of its principles are more general unreasonable searches and seizures, free speech, those are things that have to be identified or fleshed out or applied over time. The fact there wasnt the internet or computers or blogs mean the First Amendment freespeech club could not apply for those things now. It enshrines a principal and we understand what the principal was at the time but is capable of being applied to new circumstances. You define when yourself as an originalist, what are the other schools of thought adjacent to it and how do you think about the debates among those with other people who are now with you on the seventh circuit, for instance . Judge barrett one thing worth pointing out is that in the academy where i spent a large portion of my career, originalism is not necessarily a conservative idea. There is a whole school of thought originalists are a very diverse lot and there is a school of originalism that is a progressive originalism and is very committed to keeping the constitutions meaning, interpreting texts the way all originalists do, to say it had the meaning at the time it had when it was ratified. But they tend to read it at a higher level of generality. Groupis an advocacy called the constitutional Advisory Center that calls inelf it writes briefs support of originalism but takes it from a more progressive standpoint. I think probably people think conservatives who are originalist, but its a more widely accepted view than that. If you think about different strains of approaching constitutional texts, originalism is one, all judges and justices take account of history and the original meaning. Some weight it differently whereas originalists would give it dispositive weight when it is discernible. Other approaches may take a more pragmatic view and say that may have been the historical meaning but its an uncomfortable fit for current circumstances, so we will tweak it a little bit too adjusted to fit these circumstances. Sometimes its called living constitutionalism, that the constitution can evolve and change over time. Sometimes it is called a more pragmatic constitutionalism. Sen. Sasse i want to make sure we have established this fact clearly together because one of the things that is unhelpful for the American People when they hear hearings like this over the last 20 years is those of us who have advocated for you over the last three years must be doing it because we know something about your policy views and weve seen the Beautiful MindConspiracy Theory charts, for instance, that this is about specific outcomes people want. What i want is to have a judge that doesnt want to take away the job of a legislature that is accountable to people. What i want is to make sure the two political branches accountable to the people because they can hire and fire us are the places where policy decisions are made. So what you are saying is in the legal academy, there are people who agree with you on originalism is a broad philosophical school, yet would come out very different places on the outcomes of particular policy decisions . Judge barrett thats what im saying. Sen. Sasse on the notre dame faculty when you are up three years ago, the letter we got from them here had people unanimously recommend you across the faculty and i would assume there is a pretty wide view of policy on the notre dame law faculty. People can affirm you know what the job of the judges. You have the judicial temperament and modesty about the calling and they are called they are comfortable with you even though they might not agree with every policy view that you have before you put on your robe . Judge barrett i hope that is what people think of me because that is what i have always striven to do. My job, my bosses the rule of law, not imposing my policy preferences. Sen. Sasse can you tell us what the black robe is about . Why do judges in our system wear robes . Judge barrett judges in our system wear black robes, and a sword wearing black robes because chief Justice John Marshall started the practice. Colorfulused to wear robes that identified them with the schools they graduated from. John marshall decided to wear a simple black robe. Pretty soon the other justices followed suit and now all judges do it. The black robe shows justice is blind. We all dress the same and once put it on, we are standard standing united, symbolically, speaking in the name of the law, not speaking for ourselves as individuals. In your questioning from chairman graham, you talked about the process of judicial decisionmaking and started with four steps and added a fifth. Out being a reactive branch is really reactive. What it meansn that the article three branches reactive . Judge barrett article three says courts can hear cases of controversy. A judge cant walk in and say i feel like visiting the question of health care and telling people what i think. We cant even think about the law or how it would apply until litigants bring a reallife case with reallife parties in a reallife dispute before us. To decideal we have that dispute is what comes from you, the statutes you pass. We dont get to come up with the policies and see our wishes become part of the United States code. We react to the litigants to bring cases before us and apply the laws you make. Stepsasse what are the inside those article three courts . What is unique about the Supreme Court . Judge barrett the Supreme Court sits atop the federal hierarchy and my court now, the seventh circuit, every time someone loses in the district courts, which are the trial courts, they can appeal and we take every single appeal that comes. The Supreme Court works differently. The Supreme Court takes cases when it needs to. Most frequently to resolve a division among the courts of appeal or state Supreme Courts. The Supreme Court gets about eight housing petitions a year and here about 80 cases a year. Is discretionary what cases to take. It is a reactive branch and after a process where theres a statute that has been challenged and it works its way up to the court. But when the justices declined to take a case, what are they saying . Mattere saying you dont . What are they saying to the litigants in a case when they declined to answer . Judge barrett they are not expressing any view on the merits. This is a case we are going to put on our dockets because the court has limited time and resources, so it selects the cases where it is resolving a of National Importance on which the court needs to step in. Been a lot theres of discussion implicitly about standing. Standing isain what so the American People understand it . Judge barrett this dovetails with your question about the judiciary being a reactive ranch. The constitution gives the toeral courts power only decide actualized cases and controversy. Not only can we wake up one morning and volunteer our use because the constitution prohibits us from giving thats one reason im not able to answer some of the questions being asked today. A litigant cannot get us to give an advisory opinion unless the litigant actually has a real case. So you could not walk into court and file a lawsuit and just ask me to give my advice on whether some particular statute was constitutional. I can only decide that question if there is an actual dispute about it. Mentioned living constitutionalism. I think chief Justice Warren had a much broader view of standing than some folks who have influence your thinking and writing. Can you walk us through the courts view of standing over the last few decades . Thinkingrett are you about how broadly like when a plaintiff has suffered an injury that is a concrete entry . If you came into court and you were objecting to a particular statute and did not like a particular statute, you would have to suffer what is called a concrete injury. A few casescourt plaintiff lacks a concrete injury if the harm to use a word of the American People might understand, it cannot just be a procedural injury or something that did not have real consequence or effect on the litigants. I think the dispute about the opinion wave this out is deciding when an injury is concrete and courts its moret or when abstract and designed to elicit an advisory opinion from the court. Sen. Sasse you said in your opening comments yesterday that its not the responsibility of the courts to right every wrong in society. I want to ask you a question about that. Can you remind us why you said that . Think probablyi what i was getting at their but so much has happened since i gave an Opening Statement yesterday be courts, because they are reactive cannot reach out to right wrongs that dont come to them in a situation of a case or controversy. Even if they come to court in a situation of a case or controversy that a court can legitimately decide, we are not free to resolve it like solomon, we are only free to address wrongs and decide cases in accordance with democratically elected law. Yours to doking is and only if you have enacted policies that enable us to enact a wrong that enable us to do so. To do so. Wrong sen. Sasse so you say it is not explained to us why you take that perspective of wanting the losing party to understand the law and the argument. Write theett i opinion as i would write the opinion and after i write the opinion, i read it from the perspective of the losing party because i want to make sure like i said earlier that its a check put myhat if i try to emotion or preferences on the others that i can see it has been a balance strictly driven by legal analysis. I want to make sure the language is very respectful to the party who will ultimately be disappointed. I dont know if thats responsive sen. Sasse why i want to ask this is im in my fifth year here and fourth year on this committee and pretty much you are the third Supreme Court nominee to come before the committee during that time and we have had dozens of Appellate Court nominees and ive been amazed how may times the argument is American People, be really scared, the person sitting before us obviously hates people and wants sick people to die and not have health care coverage. Thats sort of an argument that is routine around here. It has been focus grouped as a good way to demonize nominees to the court and i dont understand it. I think its terribly destructive of civic health, yet i think about it from the standpoint of thoughtful, wellmeaning, nebraska democrat to hear that and they know i have a different policy views than they might on getting portability and health care so people can keep their health care across job and geographic change because thats whats driving insurance in america, its not primarily Health Status or preexisting conditions or socioeconomic the number one driver of uninsurance is that we change jobs a lot more frequently than we use to. So i have a different policy solution of how we get to port ability and health care than a lot of my democratic colleagues, but those are policy disputes about a modern economy were people move around a lot both geographically and in terms of Employer Sponsored Health insurance relationships. Sen. Klobuchar our president is the one who decided to pop a Supreme Court nomination in the middle of an election when Peoples Health care is on the line with a case before the court on november 10. So lets see what he said about the Supreme Court. One of president trumps 2015 waspromises in that his judicial appointments will do the right thing on obamacare. You can see it right here. In fact, just one day after yo