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Donate at plannedparenthood.org/slash defend. Justice Barrett, thank you for inviting us here to the Supreme Court. I'm so happy you came. It's interesting to look around this room. And there's all men.
True. No women on the walls, all of them chief justices, right? They're all chief justices, so there have been no female chiefs to display as of yet. How do you see how the highest court and the land has evolved since the Constitution in 1787? Oh, that's such an interesting question.
So the Supreme Court is actually the only federal court that's actually created by the Constitution. All the other federal courts were created at Congress's choice. And the Supreme Court has, it started out without any precedent on the books and had to forge its own way and develop the law just on the basis of the documents. Over time, it got more sophisticated because, well, I think it was always sophisticated. That's not fair to my predecessors.
But the number of precedents really swelled. And over time, it really established itself as a strong, independent, coordinate branch of government. You um You play a unique role. On this court. And legal observers that I have spoken with say, you know, they can usually predict how the liberal justices may rule or how the conservative justices may decide, but that you can be unpredictable.
In fact, you've been described to me as the most influential justice on the Supreme Court today. How do you see your role?
Well I think Every justice on the court is unique, and every justice on the court is influential.
So, in that regard, I don't see myself as any different. I see myself as just having the job of. Listening to the law, of getting the job done.
So my job is to decide each case as it comes, and I don't go in with any kind of preconceived notion of where I ought to end up. I just follow the law where it goes. What does that mean, listening to the law for you? Because it does mean something different for each justice.
Well, I actually don't think it means something different for each justice. Each justice goes to the to the case, to the briefs, to the law, to the cases, to all of the authorities that lead us to the right result. and each justice is trying to get it right.
Now, it's true that sometimes people wind up at different answers, but it's not because they're dealing with different questions or different sources. It's just because law is hard. And the cases that the Supreme Court takes are ones on which lower courts have disagreed. This is your first television interview since joining the court. That is true.
How many years ago? Five.
So it's rare. It's rare for journalists or anyone to get to sit down and talk to a Supreme Court justice.
So let's get straight to it. President Donald Trump appointed you to cement a conservative legal revolution. Are you concerned about the narrative of this court that it is no longer a separate and co-equal branch of government as designed by the Constitution?
Well Let's see, I disagree with that conception of the Supreme Court because the Supreme Court is an independent branch of government. And presidents appoint justices, and presidents have whatever their own motivations are for appointing justices. But once justices serve on the court, the whole point of life tenure and salary protection, which is guaranteed to federal judges by the Constitution, is to ensure their independence from both the executive branch and from Congress. What does the reputation of the Supreme Court matter to you? I want people to have trust in the court, and that's why I wrote this book, frankly.
I wanted people to understand how the court works. I wanted them to understand how we get our cases and how we go about making our decisions, because the court belongs to every American. And I want Americans to feel like they have a stake in the court and they understand what the court does. Because what the court does is not the same kind of work that Congress does, and it's not the same kind of work that the president does. Those are the political branches.
The court is not one of the political branches. And how does the Supreme Court make sure that it appears and works in an apolitical manner? The court deals with the law. And the way that the Supreme Court works, as I describe in the book, Isn't political. We don't sit.
When you look at the bench, this is one of the things I like to point out to children when they come and visit the court. We sit on the bench. It's not like Congress where you have Republicans on one side and Democrats on another. We sit in order of seniority and we wear black robes. And we wear black robes because we show that we are there not representing any particular interest group, not representing any political party, but we are there to be neutral arbiters and to follow the law where it leads.
In June, this Court handed President Trump what he called a monumental victory. That was lifting this nationwide injunction that would have blocked his attempt to deny citizenship to children born of undocumented immigrants on U.S.
soil. You wrote the majority opinion in that case, Trumpy Casa, Inc. Why has the Supreme Court shown a willingness? to let these controversial executive orders move forward.
Well, I wouldn't say the Supreme Court has shown a willingness to allow controversial executive orders to move forward. Like I said before, the court decides cases as they come. And each case presents its own unique challenges. And so in the book, I describe how the decision-making process works. You know, it moves slowly.
It's reading the briefs, it's listening to arguments, it's talking to law clerks, it's talking to colleagues.
So, you know, each case gets a lot of attention and each case requires a lot of analysis and discussion and thought and writing. But some observers of the court would say that granting or looking at these emergency orders from the President is not allowing the court to move slowly.
Well, the emergency orders present a challenge because they do require the work of the court to proceed far more quickly than it normally does. You know, I pointed out in the book that there are turtles all over the court because normally the court moves slowly, it changes slowly, justice moves slowly at the court because we are very deliberate. The emergency docket moves much more quickly and it is a much more recent phenomenon.
So I would say that, you know, I describe in the book the way that oral argument has grown and developed over 200 years. It's taken us to kind of settle into the way that we do arguments and opinions. The emergency docket is newer, and so I would say those processes are still being. Shaped and sorted out. Help people understand that because, as you know, there are a lot of questions about the emergency docket and the Supreme Court's.
Um decisions with regard to the emergency docket in this last term. for people, you know, generally speaking. President Trump came in promising big and bold reforms, right? He issued a lot of executive orders. Correct me if I'm wrong on any of this.
Lower courts in some cases said that those were unconstitutional. and then the president essentially appealing those came to the Supreme Court, correct?
So the way that emergency orders work is they're essentially motions. And motions used to be pretty sleepy in appellate courts. When I was on the Seventh Circuit, I would serve on a motions panel for three weeks at a time, and I maybe wrote Two or three paragraphs once. It was not a heavy lift, and it really wasn't that different at the Supreme Court. When I was a law clerk, The only emergency motions that we had were in capital cases and death penalty cases.
And so that has really picked up. Yeah, why has that changed, do you think, with this president?
Well, I don't know that it's picked. It started actually several administrations ago. And I think that it has accelerated with each administration. We had plenty of emergency docket activity in the last, I mean, I've only been on the court and the Biden administration in this most recent one. We have plenty of emergency docket action last term.
And people have been noticing that even terms before that.
So it's been on an incline, and I don't know the reasons for that. But essentially, what an emergency request asks is for the court to intervene immediately because. You know, Justice Kavanaugh has written calling it the interim docket. Or interim orders, because something has to be said as a status quo while litigation proceeds.
So the emergency docket does not resolve anything finally. It's just a holding. It just says. Here's what we're going to do. We're either going to Pause this or not pause this while things play out more fully in the courts below.
So Help explain what happened in the Trump v Casa Inc. Case, which was multiple cases, right, which lower courts were concerned about the constitutionality. of President Trump's uh effort to deny birthright citizenship. Yes. Actually, that's a really good case to bring up because it shows how this process plays out and how this process works.
So, a lot of people thought that that case was about birthright citizenship, but the birthright citizenship question was not before us, and we did not. analyze that question at all. The only question that was before us was a question that's Would sound arcane if you stopped someone on the street and asked them in any other context. It was whether the Judiciary Act of 1789 authorizes district courts. To enter what's called universal relief, which is injunctions against non-parties.
Very technical issue. One, as a former procedure teacher, I find very interesting, but My guess is that you would not be gripped by that question. But in effect, Um and and I may Read for those what Justice Katanji Brown Jackson dissented, and she accused the majority of which you're a part of, in her words, hastening the downfall of our government institutions. And she wrote in her dissent. A Martian arriving here from another planet would see these circumstances and surely wonder, what good is the Constitution?
then. Will your decision Emboldened the executive to act more as a monarchy than a democracy, as Justice Jackson suggested.
So, Justice Jackson wrote an opinion speaking only for herself, and you're right, Justice Jackson. Justice Jackson's position in that case was that she thought that this would, as you say, and bold on the executive. The majority opinion disagreed and as I said, Justice Jackson wrote a solo dissent, writing only for herself. This case wasn't about what the president can or cannot do. The case was about the authority of the district courts, the authority of the federal courts.
And I think one important theme throughout history One important theme of the book is that federal courts have to be attentive to the limits of their power. And from the beginning, actually, I tell a story in the book about George Washington trying to pull the Supreme Court into a dispute about international law. And the court said, you know, this isn't something that we're going to get involved in because. The Constitution only authorizes us to decide cases and controversies, essentially, is how that doctrine has developed.
So courts can't decide every question. Courts can't leap in all of the time. Mm-hmm. Does your Opinion essentially drastically alters the ability of courts to check presidential power.
Well The Judiciary Act of 1789 gives district courts ability to enter what are called equitable injunctions, equitable relief. It does not authorize courts to enter this particular kind of relief. As the opinion says, there may be other kinds of relief that broader that courts have the authority to enter. The universal injunction, as courts had entered it in that case, isn't one. I know that you clerked for Justice Scalia, who was known to have a sharp pen.
And um You appeared to have a sharp pen. And your remarks responding to Justice Jackson. Why did you feel the need to do that? I think my default mode isn't to write sharply. And I want to point out, I kind of feel like I always have to say this.
One of my colleagues when I first became a judge pointed this out, that a majority opinion, even though the author drafts it, is one that speaks for the court. Um But I did draft the opinion. And I think sometimes arguments that are, you match The tone that it's appropriate for the moment. And Justice Jackson made it formal, a very She made a spirited argument, and so I thought it merited a spirited response. But it is about the merits.
It was about the case. I have great respect for Justice Jackson. Justice Glee used to also say, I attack ideas, not people. And that is the spirit in which I write my opinions. But you did mention her by name.
Is that notable?
Well, the only reason why I mentioned her by name is because it was a solo dissent. And when there is a solo opinion, it is the convention of the court so that you can identify the opinion that you're responding to that you do say by name.
So when I responded to Justice Sotomayor's opinion, I wrote the principal dissent because she wrote speaking on behalf of the dissenters of the court. But the convention, when someone writes a separate opinion, is to simply refer to them by name.
So that wasn't something unique to me.
So any beef between you and Justice and Jackson? No. In fact, when Justice Jackson joined the court, I threw her a welcome dinner, and I found out what her favorite flutes were. I found out that she really loved the musical Hamilton. And so I had a Broadway singer come and sing her selections from Hamilton.
No, one of the things I try to point out in the book, and one thing I want people to know about the court. Is it a place where we can have disagreements? But still get along, because we can have disagreements that really are confined to the page, that are confined to cases. And so we can debate ideas sometimes vigorously, as you pointed out. But it doesn't inhibit us in our ability to be colleagues and friends.
And you do write so eloquently about the law and the Constitution in this book. And so, and as the Constitution lays out in Articles 1, 2, and 3, the separation of powers with these co-equal branches, right? The executive, the legislative, and the judiciary, the Supreme Court. And so opponents have looked at this last term, opponents of Your particular decision in that, and some of the other emergency docket decisions, and they worry. that this court's approach allows potentially unlawful policies to remain in effect.
while these lengthy litigation proceeds Cause irreparable harm before the actual constitutional questions are resolved.
So, can you address that? I mean, are justices enabling the President to act? without meaningful checks by Congress or the judiciary.
Well, I think the way that you phrase the question is the very idea that I'm trying to dispel in the book. Justices and courts, district courts are not trying to enable Congress or the executive to do anything. We're deciding cases. And within the power that courts have, they address cases. And sometimes that means that if cases involve the separation of powers, sometimes that means that.
You know, the executive is within his authority to do something, sometimes not. I also want to point out that all of these decisions, you know, you don't grant, when you have a merits case, the only thing that matters. is which is the winning argument, which is the strongest argument, which argument will carry the day. And these emergency DACA cases are far more tentative and there are more factors at play.
So what the court is doing is making a judgment about which party is likely to succeed. But then also questions like what is the irreparable harm if it stays in place? And I think people will disagree with respect to any individual order, whether the court made the right judgment about the merits or not. But that really, you know, I think insofar as the question might suggest that the court has some agenda or some motive, that's just wrong. But so to summarize in the so-called birthright citizen shape.
You did not rule. on the substance of birthright citizenship no.
So that issue will likely come back to this court. The constitutionality of it. I would expect it to, yes. And then we'll have a different question than we did before. Before, the question was procedural.
That was the only question that was before us. You have to answer it when someone comes. You either have to grant or deny on that question, applying the factors that the law requires in that particular circumstance. I think one thing that the court has to do, you know, the court has to decide questions without regard to who the particular players are at any moment in time. Because what we are doing is deciding what the law means in a way that will affect the future.
So it's not about. who is particularly occupying the office of the presidency right now. Because this opinion, this decision that we decide today will still govern, you know. Two presidents, four presidents, six presidents from now. John Marshall, who was appointed by President Adams.
wrote an opinion. As a circuit justice, about whether Thomas Jefferson had to respond to a subpoena in the trial of Aaron Burr. That case was cited multiple times in the last 10 years.
So cases matter and it is about the presidency rather than the president. And I know part of your writing this book too is to help people understand the court. Yes. And it can be difficult. Even as a journalist who follows this and goes back and reread everything to fully understand things.
So forgive kind of the repeated questions because I am trying to make sure that people fully understand it. But in sum. This court has issued stays or limited injunctions in cases regarding birthright citizenship. Foreign aid funding freezes. federal workforce reduction.
Will you can you answer that question? Do these repeated emergency or shadow docket interventions by the Supreme Court? risk undermining public trust. Especially if they are perceived to be politically motivated. and favorable to President Trump.
Well, I think that the point of the book is that Justices and judges, I want to include all federal judges in this, are deciding things on the merits. And I think that to the extent that any decision makes us unpopular. Um That's part of the price of the job. We have to make our best judgment about what the law requires, and sometimes that might mean that the executive branch succeeds in litigation, and sometimes not. It's not our job to look across the docket and say, oh, we want to even things out so that sometimes the executive branch wins some and sometimes it loses some.
That's the antithesis of what our job entails. Our job entails making legal judgments about the cases that come before us. And we really can't, I mean, we want the court, and I want the public. to have trust in the integrity of the court. But the court can never change its decisions.
It's judgments about what the best you know, what the right outcome is in order to tailor it to public opinion. The court's supposed to render unpopular decisions sometimes because sometimes the right legal answer isn't necessarily the popular one. And just to close the loop on that, because you used the word in responding to Justice Jackson. you use the word imperial judiciary. Do you believe what the lower courts have done in terms of of their injunctions constitutes an imperial judiciary.
No, and that I think that the lower courts are doing exactly what the Supreme Court is doing and trying to do the best they can with cases that are coming in really quickly. Um I Used that phrase imperial judiciary in response to a vision of the judiciary in which the role of the judiciary was to, in a more freewheeling way, Check the other branches. Which is not the judiciary's role. The judiciary, remember I brought up that technical Judiciary Act of 1789? You know, the judiciary is hemmed in by statutes.
Congress tells us what we can do. It's hemmed in by the Constitution, and it's important for us to attend to those limits. And not blow past them for the sake of results. But why not just let the lower court rulings? Stay.
the injunctions and then wait till it simmers up to the Supreme Court. We have to answer these interim questions when they come. And I think, you know, I Let's see, I think you're assuming that in a lot of these questions The president is likely to lose on the merits. But remember, all of these judgments, these are legal questions that we have to make our best judgments about. And these j these cases necessarily reflect our view.
tentative though it is at the time that the And you know, one point. point that I make in the book and I really Love this observation. Justice O'Connor is one of the ones who made it: that when you look at the docket of the court, you are likely to see that it is a mirror of whatever the domestic issues are in the country at the time. And that was true during desegregation. That was true during the Great Depression.
Yes, yes, yes. Expansion. 100%. And now, if you look at our docket, I think you can very reliably see a mirror of the domestic issues that people are debating in the country now. and to observers who say, that this president is pushing the boundaries.
of executive power may be overreaching. And the Supreme Court is not providing an adequate check on that. The Supreme Court, you know, and I can speak for myself in the way that I make these decisions. You know, it's not our job to survey and decide whether, you know, the current occupant of an office in this particular moment is, you know, to form a political view. You know, that's the job of journalists, that's the job of other politicians, or that's j the job of the people.
But our job is to decide these legal questions. And so in the cases that we've decided, what I can say and what I try to explain in the book. as that we're trying to get the law right. As you know, President Trump has deployed the National Guard here in the nation's capital, and he says he's going to do the same elsewhere to crack down on crime. Is President Trump right when he says he has unlimited power to deploy the National Guard in any state?
So We don't have any cases pending before us that I'm aware of. I would not be surprised if there are some cases pending below. And so I can't answer that question. But actually, this is a good opportunity for me to say why I can't answer that question, because it's something I cover in the book. Any particular legal issue, I mean, I might be sitting there with my kids and watching TV, and I might have an idea about it.
But if I'm going to decide something as a judge, It really has to happen in the context of a particular case. Because judges have to approach things with an open mind on a specific set of facts. We read briefs, I listen to oral argument, I talk to my law clerks, I write out notes, I look at the cases, I talk to my colleagues. And at any step of that process. I might change my mind from my initial reaction.
In fact, I often do. And so not only should I not, but I don't think you would want me to be in a position where I would just shoot from the hip and say, oh yeah, I think that's constitutional, or oh no, I think that's not. That's really kind of the opposite of the judicial role. But you are a scholar of the Constitution, so I do also want to ask you. Do you believe that the power to impose tariffs is something the Constitution gives to the President, or is that left to Congress?
Ah, and I have to give the same answer again, because that one actually will, is pending in the courts, and we may well. Dare I say, likely will see that case. And so, same thing goes. You know, that's the kind of thing, it's a wait and see. I'm not trying to hide the ball, and I'm sure that.
Not only you, but Probably others would be interested in what I think about that question. I don't know what I think about that question yet, I can honestly say. Stay tuned if that case comes before us. And after I dive in and Read all the relevant authorities, then I'll draw a conclusion. And it will be really interesting, I think, too, because before I asked you that question, too, I just kind of went back and looked.
And saw that the U.S. Constitution explicitly grants Congress the power to collect taxes, duties, imposts, and excises. That's Article I, Section 8. You just realized your business needed to hire someone yesterday. How can you find amazing candidates fast?
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You're a scholar of the Constitution, Nora. I don't know. You're making me one. Slowly but surely. Slowly but surely.
Something you do address in the book is the amendment process to the Constitution. And a few weeks ago, President Trump said he would probably not seek a third term. although he has told CNBC that he'd like to run. You explicitly write in the book that the Constitution, quote, leaves no room for second guessing when it comes to term limits. The 22nd Amendment sets a two-term limit.
Um That was after, you know, you mentioned FDR recently. He of course served four terms or was elected president four times. And the 22nd Amendment was passed after that.
So really, I can't say anything else but just point to the 22nd Amendment. If you ask the question how many terms a president can serve, I would point to the 22nd Amendment. Um I want to ask you about the independence of the judiciary and the frequent attacks as of late on the judiciary, and it's coming from all sides. You have been criticized and you have received Death threats, correct? Yes.
And how do you deal with that? Um let's see. Criticism I tune it out. You know, as you say, I receive a lot of criticism. I receive criticism from both sides.
And so, you know, my husband and I and my assistants and I have a need to know rule. And I just don't read news about myself unless they think I need to know, unless it's something I have to know. Because I think it's best not to let have, frankly, even the good stuff, the good stuff or the bad stuff in your head. Because I don't want to be making my decisions. I don't even want to be tempted to making decisions based on whether I think they will make people elicit praise or elicit criticism.
You know, as for the violence, I think that it should not be the price of public service for any official, judges included, to face violence or threats of violence. And of course, my colleague Justice Kavanaugh actually had an armed man come to his home. Fortunately, did not enter the home. Yes, so I'm very grateful that we have the protection of the Supreme Court police to protect our safety.
So then I wonder what you think about when high-ranking officials, whether they're from the executive branch or members of Congress, issue personal attacks on members of the judiciary. You know, a Attacks come from everywhere, and judges have been under attack at other points in history. You know, there were certainly, I talk in the book, about threats that judges received, especially in the South, after Brown versus the Board of Education was decided. You know, I think that's part of the job. I referenced John Marshall in the trial of Aaron Burr a few moments ago.
He was burned in effigy after that trial because he made a ruling that was unpopular because it led to a not guilty, Aaron Burr wasn't ultimately convicted.
So I think that's part of the Part of the risk of the job, many judges and justices before me have faced criticism and threats. And I am sure that will be true in the future. That's why it requires a stiff spine. Let's talk about the overturning of Roe versus Wade and Casey. Uh the Dobbs decision, which reversed Roe versus Wade.
Why did you agree with your Conservative colleagues to overturn a woman's constitutional right to an abortion? Um So I talk about that in the book and I describe the reasoning, I describe what the doctrine was and Those of us who were in the majority Those of us who are in the majority were applying doctrine, and I'll get technical since you asked me to be technical.
So, the doctrine that was at issue is called the due process. It's called substantive due process. The constitutional provision that's relevant is the due process clause. Of the 14th Amendment. Of the 14th Amendment.
I told you we're a constitutional scholar. And so, of course, abortion or any medical procedure is not mentioned in the Constitution. And so the grounding of Roe versus Wade was the phrase in the due process clause that no one shall be deprived of life, liberty, or property without due process of law. And because, you know, that isn't explo uh Let's see, the rights that are housed in the word liberty and the due process clause. They're not spelled out.
And that stands in contrast to things like the freedom of speech, the freedom of religion, the freedom from unreasonable searches and seizures.
So the question is: how do you decide? Because I don't think that.
Well, certainly my children would say they don't want me deciding under the law of Amy what liberties, what rights we have and not. I mean, that's a job for the American people. And the Constitution leaves virtually every question like that to the democratic process, to the American people. The Exception, this doctrine that the court has developed that's called substantive due process. looks to see which rights, which liberties are so firmly rooted in the history and traditions of the American people that they go without saying.
So the Constitution didn't even have to spell it out because it is so utterly obvious to everyone that those liberties are protected. And for the reasons that the court says in great detail in Dobbs, abortion was not one of those. And one of the stories that I tell in the book, and which I firmly believe I've given you a little snapshot. is that people should read the court's opinions. And so I think that the Dobbs opinion, I tell a story of my brother-in-law bringing the Dobbs opinion and all the separate opinions and the dissents to our family vacation.
And I was, you know, I hugged him because I always encourage people to read opinions and not everyone takes me up on the offer. But I really think all Americans obviously a decision that's important and that got a lot of attention and I really encourage people to read it. All the opinions, dissents too. And so I did. I figured if your relative can come to vacation, I didn't print them out and bring them with me, as did a member of your family, but I did go back and read them too.
To make sure that I fully understood the decision that was made by the majority. and also understand the dissent. Yes. And so one of the questions that has come up since this Supreme Court has ruled that abortion was Clearly, not in the Constitution, but is also not a fundamental right under the Due Process Clause of the 14th Amendment, is that there are a number of other rights that Americans enjoy that are also not in the Constitution. And those are, as you know, and include contraception.
and gay marriage. And so are those now Threatened because that has been the charge that has made. If this Supreme Court can do away with abortion, that gay marriage and contraception and perhaps other things are next.
Well those let's see, Dobbs was very specific and it addressed one one right, and that was the abortion right. And I think for those other cases, you know, what you have to look at is you know, as I described, liberty under the due process clause. encompasses those things that Americans embrace. that go without saying. And I think marriage.
And I think I pointed out in the book that contraception, which was recognized to be a liberty right in a case called Griswold versus Connecticut. Even at the time, that statute had been an outlier. And so I describe that in the book. And I think what you have to ask yourself is what rights really go without saying that are so firmly rooted in the minds of the American people that everyone would agree. I think the main message of Dobbs, and I think the main message of that portion of the book where I discuss that.
is that those decisions are not the Supreme Courts to make. Most decisions, I said this a moment ago, virtually every decision is left to the democratic process. Because you don't want the Supreme Court picking and choosing which rights it thinks should be fundamental and which rights it thinks should be removed from the democratic process. Gay marriage wasn't left up to the democratic process. What do you mean?
Well, it was the Supreme Court that ruled that it was constitutional.
Well, what the Supreme Court said in Obergefell was that marriage, which other cases had recognized as a constitutional right, was constitutionally protected.
So, I mean, really, the point here is it's a role of the question.
So many cases in constitutional law boil down to who decides. Is it a decision that's left to the political branches and the political process? Or is it one that the Constitution itself says that is removed, removes from the political process? I want to follow up on that because in Justice Clarence Thomas's concurring Dobbs opinion. He said That he believes the Supreme Court should reconsider past ruling in regards to contraception access, same-sex relationships, and same-sex marriage.
And I went back and read it as you suggested. That's good. You know, he said. We should reconsider all of this. Courts substantive due process precedences, including Griswold.
Lawrence of Bergefell, because any substantive due process decision is demonstrably. erroneous. You did obviously not sign on to his concurrence.
So let me just to be clear. Do you see those precedents that relate to contraception and same-sex marriage? Do you see those? Any threat of those being overturned?
Well, as you say, Justice Thomas was writing just for himself. Justices have different views about when to write concurrences and not. I didn't write in that case. And when a justice writes a concurrence, The justice gets to speak in his or her own voice and say what he or she thinks himself, as opposed to a majority opinion where there's a lot of debate and back and forth. I describe in the book, we spend a lot of time negotiating and circulating internal memos.
I like this language, I don't like that language. Justice Kavanaugh also had a concurring opinion when she said, overruling Roe does not mean the overruling of those precedents and does not threaten or cast out on those precedents, referring to contraception and gay marriage.
So Let me ask you. Are the rights of gay marriage Are the rights of marriage. and contraception Quote, deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty.
Well, we have precedents that say that they are, as I point out in the book. And I think people who write concurrences Get to You can see a window into what those individual justices think, and it's a way in which they can speak in their own voice free of having to represent the views of others in the same way that sometimes the author of a principled dissent and certainly the author of majority opinion does. Um so I think you can look at those opinions and you can see what a separate opinion says about the justice who wrote it. I don't write separate opinions that often. I'm pretty sparing about when I write separate opinions because as a general rule, I think it's good to let the court speak for itself.
So I write separate opinions only in rarer circumstances. I understand that, and so that's what I'm trying to get because you do write in the book. You say you do suggest that those are fundamental rights. And that the right to an abortion is not. You wrote in the book: the court has held that the rights to marry.
Engage in sexual intimacy. use birth control and raise children are fundamental. but the rights to do business, commit suicide and obtain abortion are not. Right, I'm describing the doctrine. I was a con law professor for many years.
Yes, I describe the doctrine in the book and that is the state of the law. which I, yeah, which I described in the book as I want people to understand it. I want Americans to understand the law and that it's not just an opinion poll about whether the Supreme Court thinks something is good or whether the Supreme Court thinks something is bad. You know, what the court is trying to do is see what the American people have decided. And sometimes the American people have expressed themselves in the Constitution itself, which is our fundamental law, sometimes in statutes.
But the court should not be imposing its own values on the American people. That's for the democratic process. And so when Hillary Clinton, for example, says, what's next? She said, my prediction is the court will do to gay marriage what they did to abortion.
Well, I think people who criticize the court or who are outside say a lot of different things. But again, the point that I make in the book is that we have to tune those things out. But you also say in the book that the rights to marry and engage in sexual intimacy and use birth control and raise children are fundamental. Yes, again, I'm describing what our doctrine is, and that is what we've said.
So we talked about the due process clause of the 14th Amendment, but the other issue is precedent. And in the confirmation process, of course, the United States Senate votes on your confirmation, and you go in and meet with a number of senators. And most recently, I did sit down with Senator Murkowski. who said that she had thought that in her conversations with you that you had said she did not accuse You of lying. She actually writes that in the book.
But she says she thought that she heard you say that you would. respect precedent when it had to do with Roe versus Wade. Let's see. I was very careful throughout the entire confirmation process, and Nora, as a journalist, I'm sure you have watched many confirmation hearings, as all nominees are. You can't make any guarantees to anyone, whether it be the president who nominated you or senators who are voting on your confirmation.
Because that would violate every rule of judicial ethics to make promises in advance about what you would do and what you would not do. In fact, something that a lot of people don't know. Is you have to fill out questionnaires for the Senate before you. before you go into the hearings as part of the nomination process. And one of the questions that's asked.
Is whether anyone in the executive branch, while your nomination process was going on, asked how you would rule on any particular case. And you have to disclose that, if so, precisely because the Senate Wants to ensure that you haven't made any promises going in, you know, promised to the President. whoever you're appointing president may be, this is how I'll rule on this case.
So in exchange for this job, in exchange for your vote, I will vote a certain way. And that's because even in the course of the nomination and confirmation process, There's an acknowledgement of the independence of the judiciary. And so it is true, and I would say that even now, as would all of my colleagues. We all respect precedent. You could just look at any Supreme Court opinion and you can see the number of prior cases that it cites.
But precedent itself, the doctrine of stereotypes, Um Builds in the conditions for overruling so that mistakes are never frozen and never etched in stone. Because the court is a human institution and it makes mistakes. You know, we would not have had Brown versus the Board of Education overruling Plessy versus Ferguson if Star Decisis did not allow for the correction of mistakes. Um I want to read something just from the minority dissent on the court for Dobbs. about the about what essentially the effect of overturning Roe versus Wade would be.
And that dissent was signed by Justices Breyer. Kagan, and Sotomayor. They wrote, the court may now face questions about the application of abortion regulations to medical care, most people view as quite different from abortion. What about the morning after pill? IUDs.
in vitro fertilization. And how about the use of dilation? and evacuation of medication for miscarriage. management. Do you see those as issues that are coming about now as a result of Dobbs?
Let's see. Those are issues inherent in medical practice, and sure, they surround. pregnancy care and the care of women. And those are issues that are left now to the democratic process, and the states are working those out. We have not had those cases on our docket.
But the central message of Dobbs, Dubbs did not render abortion illegal. Dobbs did not say anything about whether abortion is immoral. Dobbs said that these are questions that are left to the states. All of these kinds of questions, decisions that you mentioned that require medical judgments are not ones that the Constitution commits to the court. you know to decide how far into pregnancy The right of abortion might extend.
You know, the court was in the business of drawing a lot of those lines before. And what Dobbs says is that those calls are properly left to the democratic process. And the states have been working those out. There's been a lot of legislative activity and a lot of state constitutional activity since the decision in Dobbs was rendered.
So again, it's who decides. It's a question of Is the court in the business of making those decisions, or are those decisions better left to the political branches to work out? where people can make their voices heard. where people can debate and people can draw compromises and lines that reflect the views of the electorate. In what instances Does the court disagree?
with the popular majority.
Well, I disagree with majorities personally lots of times. But the question, if your question is, when does the court, I mean, That's called judicial review, right? I mean, so there's a concept in the law called the counter-majoritarian difficulty. And I feel like now, Nora, I'm talking to a constitutional scholar has to be a little bit more. I still need to learn.
So the counter-majoritarian difficulty means that the court has to make decisions that counter the majority will. And that's because the Constitution is designed to protect minority rights and to hold lines that popular majorities may want to break.
So it may be the case that when Congress enacts a law, it has majority support. In fact, it probably does if it commanded a majority in Congress. But if that oversteps the separation of powers and oversteps Congress's authority, Under Article I of the Constitution, well then the court has to essentially, if we want to simplify it, play the bad guy and say this might be a very, very popular policy. But unfortunately, Congress did not have the authority to enact it. And same thing for the President, same thing when the majority, when a statute might infringe on the freedom of speech.
And so Yeah. The court is often in the position of having to make decisions that the majority may not be pleased by. The brilliances of the U.S. Constitution, which we have talked about, is the three branches of government. That's what makes us so.
Unique in why our Constitution has held for 250 years, been amended, of course, 20 years. 27 times? Yes, 27. The Constitution sets up the three branches of government, the legislative, executive, and judicial. Designed to be separate but co-equal, establishing these checks and balances to prevent one from becoming too dominant.
What would constitute a constitutional crisis? Let's see. I don't know that I could give a definition of constitutional crisis because. I don't know that we've really faced one in this country. I think what I would say is that from the beginning, Americans have faced a series of constitutional challenges.
That's not new, that started almost from the beginning. We have faced times of intense political disagreement. I mean, we've had the Civil War. You know, we had the Reconstruction Amendments, which tried to restore rights unsuccessfully at first because of popular resistance to, you know, African Americans and those who were former slaves. We've had a lot of, we've faced the Great Depression, we've faced protests during the Vietnam War.
We faced a lot of tumult in the country, but we have always survived and America is coming up on its 250th anniversary and I think we can be proud of the way that the Constitution has held. We have the oldest written constitution in the world. And I think we should rightly be proud of that, and it has survived for a long time. I'm optimistic that it will continue to do so, and that we'll have. Another 250 years or more to go.
And there are some noted legal scholars that, and everybody has an opinion on things, and there are many people about what the Supreme Court is doing, but say we are currently in a constitutional crisis.
Well, again, I mean, I haven't said that. I mean, I think we have had many periods of. deep disagreement in the country. We have had periods where there has been conflict between the court and other branches of government or the court and the states. And we have always, like I said, come out stronger for it.
Part of the reason I ask this question is because of that Um Thought that is building other that we may be in the midst of or the beginning of a constitutional crisis because of the expansion of executive or presidential power. But also, because two of your colleagues have talked about defiance coming from within the judiciary. Justice Gorsuch wrote in NIH versus the American Public Health Association: Lower court judges may sometimes disagree with this court's decisions, but they are never. free to defy them. Is that something that concerns you as well?
I think you're talking about an opinion that Justice Gorsuch wrote recently. didn't join that opinion.
So again, as I've said, when people write concurrences, they're writing in their own voice, speaking for themselves. I think what Justice Gorsuch was talking about was star decisis, which is a topic that I talk about in the book. And the basic principle of stereotypis, when you're talking about it within the judiciary, is that lower courts follow what the Supreme Court. Has said the precedents that the Supreme Court articulates, because otherwise it would be chaos in the courts.
So the court system is kind of like a triangle with the Supreme Court sitting at the top. Goes down to the bottom. District courts are the base, the long part of the bottom of the triangle. Um Yeah, and to maintain order in the system, the Supreme Court resolves contentious questions, usually the ones on which courts of appeals have divided. And then that settles the question throughout the judiciary.
So that's just sort of a plain vanilla description of how star decisis works. What do you think the biggest misconception about the Supreme Court is? I think the biggest misconception about the Supreme Court, and I think it kind of underlies some of the questions that you've raised, which come from outside the court. Is that the court is just a partisan institution? And I can understand why people think that, especially because justices.
come after nomination by the President and confirmation from the Senate. But that is not how the court functions. And one important thing to see about the court, and which I hope people would take away from the book. is that we do our own work. And when we go into the conference room to decide a case, it is the nine of us.
There are no law clerks present, there are no assistants present. And we show our work. You know, we're the only branch of government that's totally transparent because we have to lay out all the reasons for the decisions that we make. And so, you know, I think all of those things should give the American people confidence in what the court is doing. And when I ask, We have a tradition at the court where each justice goes out to lunch with the clerks of another chambers.
And I often ask the clerks, what is it that most surprised you now that you've been working here for a few months? And they often say the disconnect between what people think is going on on the inside and what is actually going on on the inside. Um That, yeah, people project lots of narratives on what's happening on the court and the inside. That really. Aren't true.
You clerked for Justice Scalia. And I spoke with a former law clerk to Justice Galia who did not serve with you. Um But suggested that I ask you: how do you see your judicial philosophy? different or similar to Justice Scalia.
So I certainly learned a lot from Justice Galia, and I would say that there is a lot of overlap. You know, the way that he approached the Constitution, the way he interpreted statutes, his originalist and textualist approach is the same approach that I take. I would say, you asked me about my fiery pen, I would say that Justice Galia had a fiery pen, and it was... A little sharper than my pen. He was a fantastic writer, so I don't think I could hope to be as good a writer as he was.
He was so vivid and so colorful. You know, I think there is a lot of overlap. I think certainly the The decisions that I have to make now are different just because the docket is different. It's back to that point that I made about the court at any one particular moment in history being a mirror of the time. His time, he was facing different kinds of questions than I'm facing now.
But I think in broad strokes, really our philosophies are very much alike. And as you write about, and justices of the past throughout history have talked about, the court really mirrors. the great problems of each time, of each generation. Yes, that's true, because we can't go out and pick what we want to decide. We have to take what comes.
We're a passive institution in that regard. And the cases that people litigate, and so the cases that they then appeal and make it up to us. They only bother to litigate the things that they are really truly disagreeing about, that they feel passionately about, and then those are the cases that we see. But there are some smart people who make sure that those particular cases get litigated so that the Supreme Court rules on them. I think the more interest there is in the case, the higher profile the case, then the more smart lawyers really want to work on that case because those are the exciting cases to work on, the people about which people feel most passionately.
This is a lifetime appointment. This is a lifetime appointment. That's a long time that you could be on this court. While I do feel older by the day, I haven't gotten so old I'm actually thinking about retirement just yet. I don't mean it that way.
I mean it more in the context of. Thinking about, because this is your first interview as a justice, and also as I was reflecting on your role today. but also just in the future. that you Could be at the forefront of some of the most important issues of our time for decades to come. It's a privilege to serve on the court.
It truly is. I'm sure that the court will continue to decide in the future, just as it has since the beginning, many of the important questions of the day. And while I haven't started thinking about retirement, because I like to think of myself as still relatively young, my husband does say that he will really start to be offended at some point if I don't want to retire and spend time with him. Yeah. If you want to say that, that's going to make news.
Relax.
Okay. You've already, what's the phrase again? We talked about it before. The boats in the boats. Oh, yeah.
Burn the boats. It's already out. Burn the boats, yes.
Well, Justice Barrett, thank you for inviting us here. I'm Dexter Morgan. I've been through hell, but now I'm back for my curtain call. And what better place to hide than New York City? There may be a new area code.
But my code never changes. In a city full of monsters. My dark urges. We'll feel right at home. Dexter Resurrection, starring Michael C.
Hall, Uma Thurman, and Peter Dinklage. New series now streaming on the Paramount Plus premium plan.
Now streaming on Paramount Plus. It's an all-new season of adventures. I have to stop this invasion. To this shit! This crew is a team.
We are going to find our way out of this. Star Trek: Strange New Worlds, new season now streaming on Paramount Plus. Yes, thank you. Pleasure. Hmm.
