Amy Coney Barrett Doesn’t Need You to Like Her

There’s a roster of cases before the Supreme Court that could reshape the entire Trump presidency and redefine executive power. And my guest this week, Justice Amy Coney Barrett, is likely to be the decisive vote in some of these cases.

Unfortunately but predictably, that means that she couldn’t or wouldn’t respond to my most direct questions about the Trump administration.

But my goal was to push the justice on a question that she can answer, and one that she addresses at length in her new book, “Listening to the Law.” I wanted to know whether her preferred legal theory, originalism, can bend and flex in response to prudential and political concerns.

Barrett believes strongly that it shouldn’t, that justices should rule without worrying about public opinion or who happens to be in the White House. But I tend to think real-world politics constantly tests and limits that ideal. So in our conversation, I’m trying to find those limits and the ways in which even justices devoted to the original meaning of the Constitution have to deal with the highly unusual pressures of right now.

Below is an edited transcript of an episode of “Interesting Times.” We recommend listening to it in its original form for the full effect. You can do so using the player above or on Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts.

Ross Douthat: Justice Barrett, welcome to “Interesting Times.”

Amy Coney Barrett: Thank you for having me, Ross.

Douthat: I honestly would never have said no. [Barrett chuckles.]

Your book is mostly about — and we’re mostly going to talk about theories of jurisprudence, the place of the Supreme Court in American life, possibly some issues related to the Trump presidency and executive power — but it does start with a little window into the personal world of Amy Coney Barrett, so I’m going to start with a couple of questions about that terrain.

We looked it up, and you are the first guest we’ve had on the show who has more children than I do — which is only because we haven’t yet succeeded in booking Elon Musk, I should say.

Barrett: [Laughs.] There’s still time for you to catch up with me.

Douthat: That’s a bold statement. I appreciate your confidence in my youthful energy and vigor.

When you were being nominated, this newspaper, The New York Times, ran a story that talked about your mix of personal and professional obligations and how it made you a certain kind of trailblazer. And the story described you — and you can accept this description or not — as “a woman who is both unabashedly ambitious and deeply religious, who has excelled at the heights of a demanding profession,” even as she speaks openly about prioritizing her faith and family.

I’m curious if you actually see yourself this way at all? Do you see yourself as a particular kind of trailblazer or role model in that kind of balancing act?

Barrett: I don’t see myself as a trailblazer, nor do I love the word “ambitious,” because I feel like the word “ambition” puts a focus on success or ambition for its own sake, which isn’t how I’ve ever conceived of my career.

When I was growing up — I was born in 1972 — my mom stayed home, and the parents of most of my friends had a working dad and a stay-at-home mom. My kids have had a mix, and for them, it’s become unexceptional to have a mom that worked, whereas it felt like a big thing for me to make the choice because my own mother had a large family — I’m one of seven — which is, I say in the book, that’s what I always wanted. That was my No. 1 priority. And I wasn’t sure that I could do that and work at the same time, but I always have, since I had our first child.

So I think my life looks different than the life of my mom and my aunts and my friends’ parents at the time, but it’s one that my own daughters and sons and their friends, I hope, can just treat as unexceptional. Like, you can stay home if you want. You can work if you want. You can do both.

Douthat: Do you think of yourself as a feminist — a conservative feminist, if that is a category that you would accept?

Barrett: I don’t know, labels are so dangerous because they mean different things to different people. I mean, if being a feminist simply means having the view that women can do whatever it is they put their minds to and have opportunities open to them, then yes, I am.

But I think any stripe of feminism that you describe is going to have — labels are risky. So I’ll just say: Yes, yes, labels are risky.

Douthat: Labels are risky, especially when you are charged with the interpretation of the entire U.S. Constitution.

Barrett: [Laughs.] It’s so true.

Douthat: How do you actually do it? And I say this as someone who, obviously, works. Here I am working. My wife is a journalist and writer, and we do a lot of the same kind of balancing that you and your husband have done, and it takes some strange forms. But it’s very challenging. Any number of kids is challenging, but to have a large family and have a busy professional life — I’m just curious: As a Supreme Court justice, how do you feel like you guys make it work?

Barrett: A lot of people ask. That’s probably the question that I get asked most often.

It is challenging. Remember, I don’t have seven 3-year-olds, and now my oldest is 24. We have five children living at home, although one of those is in nursing school, so I really think of us as having four at home now, but they’re in middle school and high school now. It looks different, and it has looked different at each phase of parenting. And you grow a family slowly, so at various points, we had one, two, three children.

I think our attitude was always: At each stage, it looked different. At each stage, our priority was always the kids. And we were always, one of us — it didn’t necessarily have to be me — stood ready to walk away and stay home with the kids if that’s what we decided that they needed.

But for most of our family life, I was a law professor, and we lived in South Bend, which was a small, easily navigable city.

Douthat: There are a lot of very family-friendly neighborhoods around Notre Dame.

Barrett: Yeah. And my schedule was flexible. I could work late at night. Writers get some of that benefit, too. I could be home with them after school, and then I could stay up late at night or write on the weekends. So I had a lot of flexibility early on.

Douthat: Do you think of yourself as a relaxed, free-range kind of parent or [Barrett laughs] — well, I ask because one thing that struck me about having a bunch of kids is that the life that, I guess in different ways, we’re both in — the life of the professional class or something — it just really seems set up for you to have two kids, and you’re going to be helping them with homework, and you’re going to be going to parents’ night, and you have a set of parental obligations.

And a lot of people I know who do well with large families have sort of opted out of that kind of intensity, which isn’t really how I would think a Supreme Court justice would approach things. But do your kids think of you as intense?

Barrett: I would say that my kids think of me as intense.

Douthat: That’s not surprising.

Barrett: Yeah. I think they would laugh if someone asked them whether I was a loose, free-range parent — or my husband, Jesse, for that matter. No, we’re pretty organized and pretty intense. In my experience, it’s pretty tough to run a large family unless you have a lot of organization.

At the point at which we added our son John Peter, who at that point was No. 5 — John Peter is adopted and was 3 when he came home from Haiti — we shifted. We had recently done or were just about to do a renovation. And our pantry — we started doing so much Costco and Sam’s shopping that one of our daughter’s friends came over, walked in our pantry, and said: This is like a grocery store. [Chuckles.] So it takes a lot of organization.

But I will say, on the pressure to be at everything: We do a lot of trading off. We’re not both at every sporting event. We trade off. So for my son’s soccer games, maybe just one of us is there. We aren’t at a point where we can have the luxury of both attending everything.

Douthat: Yeah. I mean, my parents very rarely attended my J.V. soccer games.

Barrett: Mine, either.

Douthat: All right, last question on this theme: You’ve talked about resisting the idea of being particularly ambitious or seen as particularly ambitious and resisting labels. You succeeded Ruth Bader Ginsburg, who attained, even among Supreme Court justices, a distinctive kind of celebrity, even a distinctive kind of brand. There were “Notorious R.B.G.” shirts and hats and so on.

How comfortable are you with the idea of either yourself or any Supreme Court justice filling that kind of cultural icon role? You know, people were fascinated by Ginsburg’s workout routines. I’m not going to ask about your workout routine.

Barrett: [Chuckles.] Thank you.

Douthat: But is that appropriate to the office? Is it a challenge for the office? Is it something that justices should want to withdraw from a little bit? How do you feel about the image of Amy Coney Barrett in culture?

Barrett: So I haven’t thought a lot about the image. And I’ll just talk about this with respect to myself and my own view or what I hope to contribute to young lawyers, young women, professionals, what have you, when they look at my career.

I don’t strive to be an icon or a cultural icon. I’m a lawyer. I’m a judge. And that’s how I think of myself, and that’s how I approach the job.

And personally, judges do a lot of work by themselves because you spend a lot of time reading briefs and writing, much like writers. So it is a pretty solitary —

Douthat: With slightly more power and influence, at the end of the day.

Barrett: With slightly more power. There is a judgment line at the end of what we write. No, that isn’t really my personality and isn’t what I strive for at all.

I don’t mind that people can see what it’s like to have a large family and still work or still have a career like mine, where you’re working at a high level of government, because I think that’s valuable. I think it’s valuable for people to see that, but that’s not to say that I want to be an icon of any sort.

I feel the same way just when my kids have their friends come over to our house. I think we have a great life, and I think a lot of people maybe don’t always have the chance to see how great it is to have a large family. Challenging but also —

Douthat: Slightly challenging.

Barrett: Slightly challenging but also fun.

Douthat: Yeah, certainly fun like an intense military campaign can be fun. [Barrett laughs.]

All right, let’s talk about the law. I just want to start big picture and theoretical. You were a clerk for Justice Antonin Scalia, who is seen as one of the key intellectual progenitors of the school of constitutional interpretation that gets called originalism.

You are an originalist. You write in the book about the theory and practice of originalism. What is originalism?

Barrett: So originalism, simply stated, is just the proposition that the Constitution should be interpreted consistently with the meaning that the words of the Constitution had at the time that it was ratified.

So where the meaning of those words can be discerned, it is decisive.

Douthat: Oh, well, that’s easy.

Barrett: That’s easy. That’s it.

Douthat: OK. That’s it.

Barrett: We can go home.

Douthat: I think one of the great advantages that originalism has had over rival schools of interpretation, especially in the years since Scalia joined the court and his influence began to extend through the conservative legal movement but obviously beyond that as well, is that even most prominent liberal justices have to claim some kind of respect for originalism. There are liberal interpretations of originalism.

It’s been a tremendously successful theory, in part for the reason we just jokingly exchanged: It’s incredibly easy to state, and it sounds like basic common sense. What else would a justice do if not interpret what the words meant when they were ratified?

But it is a little bit more complicated than that in actual practice. First of all, you talk about the meaning of the words. So you are not trying to interpret the intentions of the people who wrote the Constitution or wrote the statutory law, right?

Barrett: Right. So we’re trying to interpret the meaning of words like “freedom of speech,” “establishment of religion,” “unreasonable search and seizure.” We’re looking at the words, and we’re saying: Well, what would someone in 1791 — which is when the Bill of Rights was ratified — have understood those words, those phrases, those expressions to mean? As opposed to thinking your way into the mind of James Madison and saying: Would James Madison have thought that this was an unreasonable search or seizure?

Douthat: Does that make you a historian by necessity?

Barrett: No, it does not make me a historian. Critics might say: Well, originalist judges are amateur historians. They’re not historians, but they’re trying to play them on TV.

But a historian is trying to do something entirely different. A historian is offering a historical narrative, a historical account, and is doing a much more wide-ranging search through many more sources. The questions that we as judges pursue are fundamentally legal ones: Is this speech protected?

The term has begun. We’ve heard arguments already, and history is relevant to some of those. And our constitutional document is more than two centuries old, so we have accumulated all kinds of history — not just the original meaning but also all of the precedent, court decisions that have been decided in the interim since the Constitution was ratified.

So we’re not historians. We’re looking at the legal history behind certain words and phrases. And that’s actually something that all judges do, not just originalists. Because — putting on my constitutional law professor hat — there are various sources that all constitutional interpreters look to, and the question is: How do you weight them? History is a tool in everyone’s tool kit.

Douthat: We’ll get to the question of precedent and how it influences decision making in a minute. But I want to stay with this question of history.

Take a phrase like “unreasonable search and seizure.” What does it mean for an originalist to consider what a phrase like that meant at the time of the ratification of the Constitution?

Barrett: Yes, so you would look back. One of the famous cases — it’s an example I use in the book — is Kyllo v. United States, which presented the question of whether an infrared technology to detect heat in a building for purposes of detecting whether someone was growing marijuana illegally, whether that was a search. You didn’t enter the premises. You didn’t actually see anything. You just used this heat sensor to try to detect the drug activity. And the question was whether that was a search.

So the court — Justice Scalia wrote the opinion for a majority of the court — looked to see: Well, what did it mean to search? And that required looking at founding-era dictionaries. What did “a search” mean?

He looked at founding-era legal treatises, Blackstone’s Commentaries and some cases from that period and ultimately concluded that, yes, that was a search.

Clearly they didn’t have that kind of infrared technology or this thermal-imaging device, I think it was, at the time of the founding. But, something that enhanced the senses so that you could see things or sense things that would not be discernible to the ordinary eye was that kind of invasion or line crossing — I’m paraphrasing all of this to make it more accessible — that one might consider a search of someone’s home.

Douthat: But reasonable people then will disagree about some of that historical interpretation, right?

Barrett: Of course, for a number of reasons. Often people may agree about the principle — like, yes, this is what “search” means — but then disagree about its application to particular facts. And we have that kind of disagreement all the time in the law, even when you’re not talking about a situation in which history is relevant.

So law is hard, and the cases that make it to the Supreme Court are typically unsettled, which is why they make their way up to us. People sometimes caricature law generally, originalists in particular. I think it’s a common misconception that answers are easy and that if you can just find the right theory, there’s the promise of certitude. And no legal theory can deliver that. That includes originalism.

Douthat: Let’s talk about a case where there isn’t a specific provision of the Constitution that everyone is trying to argue over what it means and how it applies, which would be the case of abortion.

Obviously, one of the most controversial decisions that you’ve been involved in so far at the court is the Dobbs decision that overruled Roe v. Wade. The Constitution obviously doesn’t say anything about abortion. There’s no abortion provision in the Bill of Rights or anywhere else, right?

Barrett: Right.

Douthat: Does that just mean, from an originalist perspective, case closed? Abortion is left to Congress or left to the states, and that’s all that needs to be said?

Barrett: No, because the Dobbs decision applied a framework. It actually isn’t an originalist decision, because it’s building on precedent. So the Dobbs decision was interpreting the 14th Amendment’s due process clause — which says that no person “shall be deprived of life, liberty or property, without due process of law” — because, to the extent one might argue that there is a right to an abortion in the Constitution, it’s located in that clause. That’s where Roe found it. “No person shall be deprived of liberty” would be the relevant one there.

And so the courts — the line of cases is known as substantive due process — and what those cases say is: Yes, this phrase, “no person shall be deprived of life, liberty or property, without due process of law,” it sounds like: Well, if I’m going to take away your car, I have to give you fair procedures before doing so.

But the court has long recognized that it also has a substantive component that inheres in that word, “liberty.” So there are some things that a legislature can’t take away, be it Congress or the 14th Amendment, which applies specifically to the states.

Douthat: Liberties, to be clear, that are not themselves enumerated in the Constitution —

Barrett: That are not themselves enumerated. Well, to be tricky — and I’ll try to avoid going into complete law professor mode — that word “liberty” in the 14th Amendment does incorporate many of the guarantees that are specifically stated in the Bill of Rights and make it so that states have to respect, say, freedom of religion, the freedom from unreasonable searches and seizures and so on. Because were it not for the 14th Amendment, everything in the Bill of Rights would constrain only the federal government.

So yes, that word, “liberty,” does protect some content above and beyond things that are expressly stated in the Constitution. But you see the problem. I might think a lot of things are in “liberty” that you may not think are in “liberty” that one would disagree with. And there’s a lot of risk — this has been a very contested area of constitutional law for a long time — in making judges the final arbiters of exactly what the content of that word, “liberty,” is.

So in an effort to reconcile this idea that the Supreme Court is neither a constitution maker nor a democratically representative body, a much less branch of government, the test says: Well, if there are some things that are so deeply entrenched and so fundamentally a part of American society that they go without saying — we don’t need to enumerate them or say them out loud — then those are the kinds of things where it’s so widely understood that we don’t have to put it in writing; we don’t have to commit it to paper or commit it to parchment, so to speak, then those kinds of things inhere in that word “liberty,” and they have the status of constitutional guarantee.

But that’s a small step.

Douthat: What would be some examples of those kinds of liberties, apart from the abortion question?

Barrett: Marriage, the right to direct the upbringing of one’s children — these are all ones I’m pulling from precedent — the right to use contraception.

The court has said that the ones that are not included are the right to assisted suicide and the right to abortion. I think those are probably the two most prominent ones that have been held not on the list.

Douthat: Right. And you were one of the people who held that the right to abortion was not on the list —

Barrett: Not on the list. Yes.

Douthat: Why?

Barrett: Because, given the test — as I said, these are rights that are so widely understood to be fundamental that they go without saying — the test is that, before the court will recognize such a right as an unenumerated constitutional guarantee, it has to be stated at a specific level. Because if you state something at a broad enough level, like “right to control one’s body,” that could include a whole lot of things. Everything from assisted suicide to abortion to —

Douthat: To drug use.

Barrett: Exactly. So you have to state it at a specific level of generality, because it’s also only if something is identified precisely that you can really measure what the degree of buy-in among the American public is. And then it has to be deeply rooted in this country’s history and tradition. It can’t be a Johnny-come-lately.

The case — I talk about this in the book — Washington v. Glucksberg is the name of the test. For purposes of this test, it’s not an originalism thing. It’s not just frozen at the moment of the ratification of the 14th Amendment. This is actually looking more deeply at the history and traditions of the American people. And abortion failed that test. The right to an abortion failed that test because it’s been a deeply contested issue. It certainly was in 1973, when Roe was decided, and continued to be contested.

Casey v. Planned Parenthood — that’s the case in which the court first confronted the question of whether to overturn Roe v. Wade, prior to Dobbs. And in Casey the controlling opinion did not say that Roe was right but, for reasons of stare decisis — I assume you’re going to want to talk about precedent later — said: It’s better to just let this lie because we’re hoping that this will bring both sides of this controversy together in America. And let’s just say that now it’s settled. It’s a truce.

Well, that didn’t happen post-Casey. The right to abortion has continued to roil our politics. So what the court held in Dobbs was that it could not be said that the right to terminate a pregnancy was one that was deeply rooted and considered so fundamental by a supermajority of Americans that it didn’t even need to be said, that it went without saying.

Douthat: But there, using that test, history, beyond legal history, also becomes relevant, surely. Like, the condition of debates about abortion in the 19th century become relevant to that kind of test.

Put it this way: I think it is very reasonable to look at the history of the abortion debate over the last 50 years and say: The court tried to settle this case. It clearly didn’t. There isn’t a deeply rooted pro-choice consensus in America. It’s more contested than that.

I think that’s true, but it’s a historical judgment. It’s a judgment about public opinion. It’s a judgment about a whole host of things that are outside the letter of the law.

Barrett: So this test, this whole area of substantive due process, is tricky for some of the reasons you say. That’s been a criticism of the doctrine in general and a criticism of the general notion that we can have rights that the Constitution doesn’t specify, precisely because of the kind of inquiry that it invites judges to undertake.

But Dobbs didn’t question that. Dobbs accepted that there is this doctrine of substantive due process that did not —

Douthat: Do you question that?

Barrett: Well, now you’re asking questions that I can’t answer. No, I’m very careful in the book — and I’m always very, very careful — I apply kind of confirmation-hearing rules. So I take everything — and I do in the book, in my discussion of Dobbs — take the law as I find it. You know, as it is.

And I will say, I think you’re right that this inquiry — whether something is deeply settled in this country’s history and tradition — could sweep more broadly than just the law. But as a practical matter, in the cases — and there are just a handful of these substantive due process cases — the court has focused primarily on the law and primarily on the existence of abortion restrictions, for example, in Dobbs. Like the court could detail and could look at because you don’t have to look that far.

Douthat: Right. You could say there were abortion restrictions in the 19th century, in the 18th century and so on.

Barrett: When Roe was decided —

Douthat: And when Roe was decided.

Barrett: — almost every state still had prohibitions in place.

Douthat: At the risk of not getting definite answers, confirmation-hearing-style, I am interested in pressing a little bit on both the limits of originalism and also the places where interpretation of the meaning of the law interacts with prudence, I guess you could say — how justices think about their role in American politics and their interaction with politics as it actually exists.

On that question of limits and hard issues, the best reason an originalist who might have some doubts about substantive due process would just sort of go along with the tests that you’ve just described would be stare decisis, right?

Barrett: Right.

Douthat: The premise that the court has some kind of obligation to respect precedent and work from precedent and not just in every decision go back to treat every case as a de novo case, right?

Barrett: Right.

Douthat: But at the same time, the court overturns precedent all the time.

Barrett: Well, not all the time.

Douthat: OK, not all the time. How often?

Barrett: [Chuckles.] So in the Roberts court, the statistics that I have seen — and I have my law clerks gather them for me for various purposes — the Roberts court has overturned precedent roughly one time per year. Before that, I think the Rehnquist and Burger courts were at around two and a half or three.

So the court takes precedent quite seriously, and the court really does not overturn precedent, like, all the time. Yeah.

Douthat: How do you tell when it’s OK to overturn precedent?

Barrett: So stare decisis itself is a doctrine and has its own legal tests. We’re talking about Dobbs. That’s a good example. I’ve talked about the doctrinal test of substantive due process, which is the way to measure whether Roe was rightly decided.

But the question of when you decide whether to overturn precedent is never just: Is this decision right or wrong? Because if that’s the only question, well, then you don’t need stare decisis, because you just decide what you think is right every time.

The doctrine of stare decisis is the second stage of the analysis, because if a decision is wrong, then you have to decide whether you should keep it, for many of the reasons you say — stability, reliance interests, etc.

Douthat: What are reliance interests? What does that term mean?

Barrett: Reliance interests are things that would be upset or undone if a decision is undone. Typically, when the doctrine of stare decisis was first articulated in the law, the classic examples were property and contract. If you have a particular law that governs the sale of homes, for example, and the court overturns a precedent of real estate or property law, all of a sudden it could call into question title to hundreds of houses in a way that would be hard to undo.

And you can imagine many things like that, particularly in commercial interests. Those are the classic law professor cases where you point to reliance interests.

Douthat: Can there be social reliance interests, in the sense of people making life choices on the basis of a right being protected?

Barrett: Depends what you mean by social reliance interests.

Douthat: Well, to make it concrete: in Obergefell v. Hodges, the Supreme Court recognized a right to same-sex marriage. Originalist justices at the time believed that ruling was wrongly decided. One of the arguments for why Obergefell v. Hodges is unlikely to ever be overturned is the idea that people have made decisions about who to marry and therefore where to live and children —

Barrett: And children.

Douthat: And everything else, right? On the basis of that ruling.

Barrett: Yes, those are absolutely reliance interests, but I wouldn’t describe them — when you said social reliance interests, that sounds like things in the air. But those are very concrete reliance interests. So those would be classic reliance interests in the terms of the law, in terms of legal doctrine. Those are financial, those are medical, those are — well, you can imagine, going on.

Douthat: Right. But then is there a distinction between those kinds of reliance interests and, let’s say, the interest of someone who made a certain set of life choices on the assumption that the right to abortion would be available to them? Why does Roe v. Wade fail the tests of stare decisis in this or other areas?

Barrett: So for purposes of Roe and Casey, if you’re looking at the specific reliance interests, what the court has said was: Well, yes, but the reliance interest would run for nine months.

And this would be a disputed area of law. There was some dispute back and forth about this in Casey between the plurality and the dissenting opinions in that case.

But that more nebulous — that’s why I was kind of pushing back a little bit when you said societal interest and then you listed the kinds of reliance interests that people would have in marriage, I would define those differently than just saying they’re social reliance interests, because I think ones that are not concrete or that have to do with vaguer conceptions, those are the kinds of things that are really hard for judges to measure or to know about.

I’m not saying that they don’t matter — those do — but for legal doctrine to take account of them would be quite challenging. So as a matter of legal doctrine, those are not the kinds of reliance interests that are classically considered part of the stare decisis calculus.

Douthat: One of the points that you’ve made in the past is that when originalism was first taking hold as a popular theory, one of the reasons for its popularity was that it was seen as offering a kind of restraint on justices. We had just gone through the Burger court, but really, before that, the Warren court, which was very active in, let’s say, discovering new rights under the banner of substantive due process. And originalism seemed to say: OK, this is a way to limit the Supreme Court’s power.

But you’ve also noted that, just as a theoretical matter, originalism isn’t a theory of restraint per se. It doesn’t say that justices should avoid being activists or should just defer to legislatures or anything like that.

Is an originalist as likely, at a theoretical level, to be ready to overturn a precedent as any other kind of justice, do you think?

Barrett: So there’s nothing in the theory of originalism, I think, that makes justices more or less likely to overrule precedent.

Douthat: Right.

Barrett: I mean, William O. Douglas, who was a justice who was far from an originalist — he subscribed to more of what I would describe as a living-Constitution view. For that to be your view, where you’re constantly updating constitutional doctrine to bring it into step with the mood of the time — that would be one way to describe it — you have to be willing to overrule a lot of precedents to do that. And the Warren court, in fact, did.

So an originalist — some would say: Well, originalists would be more willing to overrule precedent so that they can return.

Douthat: Right.

Barrett: So maybe their reason, it might be —

Douthat: Before you have something like the Warren court, the originalist is maybe more modest. But if you have a wave of inventive rulings, then the originalist has their own incentives to be activist in turn.

Barrett: Maybe. But if you also have others who take a more kind of progressive or living-constitutionalist approach on the court, they still have the same incentives to continue to overrule precedent to take it in that direction.

I don’t mean to say that I think either side is hellbent on remaking constitutional law. That isn’t what I mean. I just don’t think the problem of precedent is unique to any particular jurisprudential theory. It is one that every theory has to grapple with, and every judge faces the challenge.

Douthat: What restrains the Supreme Court or a Supreme Court justice, given the pretty open-ended authority that the Constitution — or at least Marbury v. Madison’s interpretation of the Constitution — gives to the Supreme Court?

Barrett: I think there are a lot of checks on the Supreme Court, so I guess I would resist characterizing the Supreme Court as an institution with open-ended authority.

For one thing, our jurisdiction is pretty narrow. We have jurisdiction that’s hemmed in both by the Constitution itself and then also by Congress’s power to dictate the limits of our jurisdiction. So we can’t decide just anything, and we can’t announce.

When I was first confirmed, a friend said: What’s the first case you’re going to decide? And that’s not how it works. It’s not like a president who goes in and has an agenda and then on Day 1 says: This is what we’re going to start doing.

We wait. The cases come to us. We’re a reactive institution. Congress gets to dictate the limits of our jurisdiction. The Constitution does, too. And all of those things hem the court in.

Douthat: But the court obviously goes through periods where it seems to occupy a more expansive role in American life — the Warren court being an example.

I guess I wonder maybe about a related temptation or issue, which is the extent to which any Supreme Court justice and any Supreme Court theory can resist the pull of partisanship and ideological commitment.

I’ve read a lot of Supreme Court interviews — not only with you — where justices go on at great length about how we should not see the Supreme Court as a partisan institution and how most of the cases that come before the court are not decided along any kind of ideological lines. That people are unpredictable. You have 9-to-0 rulings. You have mixed-up 6-to-3 rulings, and that’s all true.

Nonetheless, when it comes to the biggest cases — the cases that, as you say, are the hardest questions, the ones that get to the Supreme Court, the ones that get the headlines — it really is the case that the safest way to bet is to say: Republican appointees are going to line up on one side, and Democratic appointees are going to line up on the other. Especially now that the Republican Party has become a little better at vetting its judicial nominations.

What is your theory for why that happens? And does originalism restrain Republican-appointed justices from just issuing Republican rulings in any substantial way?

Barrett: Well, I guess I do want to push back against your premise a little bit because, in my very first term on the court, there was a challenge to the Affordable Care Act that people were convinced was going to be a 6-to-3 decision, and it wasn’t. I think it was 8 to 1, maybe 7 to 2.

Douthat: Was this King v. Burwell?

Barrett: No, King v. Burwell predated my time. This was California v. Texas.

Douthat: Right.

Barrett: There have been, in the last couple terms, cases about guns and cases about voting that ex ante, at the beginning of the term, people thought were the really big cases. And everybody thought: Oh, that’s going to be a 6-to-3 case; that’s how it’s going to break down.

And then once the vote doesn’t come out that way — once it’s 7 to 2, 8 to 1 or even unanimous — then nobody talks about those cases.

So I don’t think it’s true, even in all of the deeply contested, closely watched cases, but it is true in some subset of those — that’s undeniable, that there is a subset of cases.

Last term — and I might have this number exactly wrong, because now I’m just thinking of it off the top of my head — I think there might have been six cases that broke down 6 to 3 by party of appointing president. And all of those six were not ones that listeners would probably care deeply about. Some of them were more arcane issues.

So what explains that difference? So you’re suggesting that, well, do we all think that it’s just partisanship?

Douthat: I’m not suggesting that it’s just partisanship. I guess I’m just suggesting that there are times when I read a ruling like the first Obamacare ruling, which was on the question of whether the Constitution allowed the imposition of an individual mandate in health care. And that one broke down in a very weird way, but effectively it was 4 to 4 to 1, with Chief Justice Roberts as the swing vote.

And I’m someone who grew up as a conservative, who has a deep sympathy for originalism, but I read those arguments back and forth, and it just seemed to me to be a kind of constitutional coin flip. Maybe that’s unfair, but where it stood to reason that Antonin Scalia, in the end, was going to decide that the Constitution didn’t allow this mandate because he didn’t like Obamacare, right?

Barrett: I think it’s —

Douthat: No?

Barrett: Well, let’s see. I’m certainly not going to say, “I think that’s why Justice Scalia reached that decision,” because I don’t.

Douthat: I wouldn’t expect you to.

Barrett: No, but I think what explains it — now, I just want to bracket that judges are human and judges are fallible. And I certainly wouldn’t sit here and say that judges never make mistakes or let their partisan views or personal views bleed into their merits judgment. I wouldn’t say that. So bracket that point for the moment.

But I think in cases like the Affordable Care Act case — the commerce clause challenge that you’re talking about — or even in Dobbs, I think those breakdowns are explained fundamentally by base line differences in approaches to the Constitution.

So, for example, in Dobbs — let’s put aside the stare decisis point for the moment. On the merits point, the difference of opinion between the majority and the dissent was on the role of the court in identifying unenumerated rights. That’s a fundamental. That’s not “That’s a disagreement.” That is a constitutional jurisprudential one that transcends just the specific debate about abortion. It’s a debate on which conservatives and liberals have long disagreed about the role of the court in interpreting the Constitution.

Same with the commerce clause. It’s just true — and this goes back to debates about the First Bank of the United States — that there have been competing camps of constitutional lawyers since the time of the founding who have approached the commerce clause with a fundamentally narrow interpretation or a fundamentally broader one. That’s the fight between Alexander Hamilton and Thomas Jefferson, and we’ve just seen that play out again more recently.

So I point out in the book, there’s nothing new under the sun, in that respect.

Douthat: Let’s carry this question into the current political landscape.

Barrett: OK. [Laughs.]

Douthat: Where we’re in an environment where many of the central questions the court is taking up in the second Trump administration have to do with executive power — claims of executive power made by the Trump administration that are, if not novel, at least we could call them ambitious and aggressive, I think it’s fair to say. You don’t have to. I will call them ambitious and aggressive.

Would you say there are longstanding camps debating the scope of executive power? And is there a basic originalist view of executive power that exists above and around the particular controversies you’re likely to deal with this term?

Barrett: So I would say that the unitary executive theory, which is the theory that Article II vests the executive power in the president, is one that has long been associated with originalism.

It’s one that Justice Scalia advocated: the idea that the president has to control the executive branch. He had a famous dissent in Morrison v. Olson, which was a case that upheld the constitutionality of the independent counsel statute. And essentially Justice Scalia’s objection to the majority opinion, holding that the independent counsel statute was constitutional, was that you could not have a prosecutor within the executive branch exercising prosecutorial power — executive power that was outside the line of the president’s control — because he essentially became sort of this bureaucrat with power, this prosecutor with power unto himself.

So, yes, the unitary executive theory is a structural theory —

Douthat: And it implies strong presidential power over federal agencies, for instance.

Barrett: It would imply strong presidential power over executive agencies. There has been a lot of debate and some new originalist scholarship debating right now whether indeed it has sound originalist credentials. But yes, it is one that has traditionally been associated with originalists.

You can see this in debates during the Great Depression and F.D.R. and the New Deal and the explosion of the administrative state. Back then, you had a debate about how much Congress could create administrative agencies that fell outside the president’s control.

And there were some who said: No, the executive branch has to be fully within the executive’s control. And others who favored the New Deal expansion of the administrative state who said: No, Congress can take agencies and make them independent of the president’s control.

That’s essentially the debate that we’re seeing play out in some of the cases on the court’s docket now.

Douthat: Right. And I think it’s fair to say that the Supreme Court has a majority right now that is broadly in tune with some of the arguments you’ve just sketched.

I feel like I see your mouth twitching slightly. I’m just making statements.

Barrett: [Laughs.] No, you’re just making statements. Yeah.

Douthat: You can agree or disagree. But there have been a number of cases or at least a few related to executive power already in this administration where you have written if not a dissenting opinion at least a separate opinion.

Barrett: Um, yeah.

Douthat: For instance, in the presidential immunity decision —

Barrett: Right, right.

Douthat: There the majority offered an expansive or what was seen as an expansive view — again, this is me editorializing, not you — and you joined the majority but also wrote separately, right?

Barrett: I mostly joined the majority. I didn’t join all of it. I mostly joined the majority, and I wrote separately because I understood it a bit more narrowly.

Douthat: Could you just talk a little bit about how you might see executive power differently from some of your colleagues?

Barrett: Well, remember, I’m observing confirmation-hearing rules here.

The immunity decision was a question of — it wasn’t actually even of executive power straight up, in the way that we’re talking about this unitary executive problem. That was a different kind of question.

And I think it’s probably fair to say that all of the more recent cases that are on the interim/emergency/whatever-we-want-to-call-it-these-days dockets, so they’re still in progress. There are cases in which one might say the ending is T.B.D., so I can’t talk about them.

Douthat: OK. Then let’s return maybe to a slightly higher level of more theoretical or more general considerations. We’re living through an era where it seems to a lot of observers that Congress is increasingly unwilling to or is at least unexcited by the exercise of its own powers and that this is especially true when it’s under the control of the same party as the White House. There’s a broad sense that Congress is doing less and, in a dynamic relationship to that, the presidency is doing more.

As a member of the third branch, the other branch, do you think that considerations like that have any role to play in the court’s obligation? In the sense that something like the unitary executive theory might have a similar theoretical basis in 1975 as it does in 2025, but in 1975, the executive is relatively weak, hemmed in by the post-Watergate Congress and more limited. Today, I think it’s fair to say, the executive is much more powerful than it was at that period.

Is that something that enters into judicial considerations when you’re thinking about the cases that you take, the scope of the rulings that you decide to make? Does the existing balance of power between the branches matter at all to jurisprudence?

Barrett: So there’s a lot in that question.

Douthat: Yes.

Barrett: Maybe I’ll hit two points in response: I think at a broad level, it’s important to say — and I think this is actually a disconnect between what observers of the court expect to see and what the court can actually do — the press and the public live in a particular moment. You’re either living in the Watergate years, or you’re living right now, and you’re seeing everything through that lens. The court has to take a longer view, and so the content of doctrine cannot turn on just the precise political moment.

Because the doctrine — we are drawing on cases that have come before. And this isn’t anything to do with just being an originalist; the court decides cases not just in a “one ticket, this train only.” What we decide today is going to apply tomorrow.

One point that I’ve made — I talk in the book a couple times about decisions that John Marshall made, including in the trial of Aaron Burr. Those cases got cited within the last couple of years on more than one occasion. So what we decide now would be cited seven, eight or nine presidents from now.

We have to be very careful that the content of the doctrine isn’t fashioned just for the moment, because one reason that the Constitution has been able to survive is that it isn’t contingent only on a particular period. So that’s at a broad level.

But, I do think there is a lot of discretion. You asked: Does it affect the scope of decisions?

Douthat: Right.

Barrett: Yes, I think it can. I think those kinds of considerations — the court does have a little bit more room in that regard in deciding the breadth of a decision.

Douthat: And whether to leave certain questions temporarily unanswered, maybe?

Barrett: That is not always possible.

Douthat: Right.

Barrett: But yes, where it is possible, that is the kind of a thing where the court can decide, where it can, there is sometimes a range of discretion in deciding how broadly or narrowly to write a rule or a rule should be.

Douthat: And this is one of the conceits about Chief Justice Roberts, in particular, that again, you may or may not agree with. But, a lot of people see him in his role as chief justice as someone who is supposed to be the steward of the court’s position, where in particularly fraught moments, you go for the consensus point that delivers the nonpolarizing ruling.

Over time, Roberts doesn’t have a lot of really committed admirers. Obviously, he doesn’t have a lot of left-wing fans. But a lot of conservatives prefer a firm doctrinal consistency to his more political mentality.

I’ve developed a lot of sympathy for that kind of approach. And again, you may not think that he is actually taking that approach. But I’m curious to what extent you think that enters into a chief justice’s calculations. Like, is the time ripe for a decision, for instance?

Barrett: Well, let’s see. So I certainly won’t be the Chief Justice Roberts interpreter, horse whisperer, chief justice whisperer.

Douthat: No. We hope to get him on the show eventually.

Barrett: [Chuckles.] I’ll put in a good word.

Douthat: Where he will just sit and say nothing.

Barrett: No, I’m teasing.

Douthat: He will say nothing for 45 minutes.

Barrett: One reaction I have to what you said is: At the beginning you asked me whether I sought to be an icon or have a persona, whether I thought it was a good thing, and you pointed out that the chief justice has few admirers on either side. I think that is a tribute to him because an important part of this job — and something I talk about in the book — is you have to be willing to be disliked.

I think it’s pretty clear that no decision that Chief Justice Roberts has made has been in an effort to build himself a following. He’s making decisions quite plainly based on — whatever the calculus may be and I won’t offer a view on that — what he thinks are the right decisions for the country, the court, the Constitution and not with an eye toward building up a fan base. And I think that’s commendable.

Douthat: All right. Let’s try to be a little more concrete again as we move toward the end, even at the risk of nonanswers.

The Trump administration has discovered ways to use executive power to gain advantages, even if in the end it loses the legal forays that it makes.

We were talking earlier about reliance interests and the extent to which you can have facts on the ground that might make the Supreme Court hesitant to overrule or overturn something. The administration has taken extraordinary steps around tariff policy. It’s created substantial facts on the ground long before the Supreme Court gets around to hearing the case.

You’re not going to answer a question about tariffs [Barrett laughs], but can you answer a more general question about how a court should think about executive maneuvering and attempts to box the Supreme Court in or use the law in ways that are, in effect, disingenuous?

Barrett: I don’t think I can answer that one.

Douthat: OK, that’s fine.

Barrett: Because it’s too difficult to extricate from current cases.

Douthat: No, that’s fine. OK. A very wise friend observed, when I was preparing for this interview, that it seems that the Trump White House has been extremely deferential to the Supreme Court and extremely critical of the lower courts, in terms of expansive hostile rhetoric to lower court rulings. To what extent does the Supreme Court have an obligation to see itself as a defender and protector of the entire judicial branch in conflicts with the executive?

Barrett: I don’t know that I really can answer that one, either, because that wades very much into current debates, which I probably can’t —

Douthat: OK, let’s make it general. When I was younger, almost all of the most stinging critiques of the Supreme Court came from the right.

And now there are still plenty of stinging critiques of the court from the right, but there’s also a substantial movement from the political left that raised possibilities of court packing, adding justices to the Supreme Court, stripping the court of jurisdiction and other things in the Biden era.

Is there an extent to which the Roberts approach becomes more important when the court is under threat or critique from both right and left? Or is it even more important in that kind of moment to maintain an intellectual independence, where you are insulating yourself entirely from any sense of political pressure?

Barrett: My own view?

Douthat: Your own view.

Barrett: My own view — and what I say pretty clearly in the book — is: intellectual independence. I think you have to make a judgment. Once you allow yourself and you open the door to letting outside pressures of any kind influence or dictate — especially dictate — your decisions, then it’s over. Therein lies madness. Because my oath requires fidelity to the Constitution and to decide these cases by my best lights.

And honestly, I’m a judge. I’m a lawyer. I’m not a politician. It’s pretty difficult for me to say what public opinion is. I’m not a pollster. I don’t know what the consequences would be. So I don’t even think that judges are particularly well suited to try to guess at some of those things. So you’re —

Douthat: But some of the decisions that you make, for reasons we discussed earlier, obviously have to try to take into account some issues in that terrain. Just the exchange we had before about abortion, where we were discussing to what extent are abortion rights deeply rooted in the culture and politics of the United States, you are making some kind of cultural assessment about the state of American life when you do something like that, right?

Barrett: Well, I resisted when you described it as a cultural assessment, and I said: Well, it’s a legal assessment, and in the cases where we’ve actually made it, we’ve been making a legal inquiry looking at what the state of the law was on the books.

The kind of assessment gauging public opinion or public reaction would not be a legal assessment, nor would it be one that was focused in the way that our substantive due process doctrine focuses the inquiry in cases like Dobbs.

It would be kind of: Well, when I read The New York Times, what do I think people think about this? And I just resist that entirely as the kind of thing I ought to be taking into account making decisions.

Douthat: Does that also apply to the long view that you were describing earlier, when you said: Look, we’re not making law just for the Trump era; we’re making law for the next 50 years? It doesn’t bring in any kind of concrete vision of what the future might actually look like?

Barrett: Let’s see. So I think these are complicated questions because we might be talking about different things.

When you ask me: Do we account for public opinion? You do look forward, and you do take into account consequences of decisions. You raised the Trump immunity decision from last year. In that case, part of what the court’s opinion said was: Well, look at the consequences of this kind of retribution that would come if the president didn’t have some sort of immunity. He would be inhibited.

And it’s because, looking forward — I mean, the opinion took account of what might happen in the future to the office. So that kind —

Douthat: Yes, and then the effects of that on the larger constitutional balance of power? The state of the American republic, right?

Barrett: Yes, it did. But that —

Douthat: I just don’t think you can quite get away from those kind of — let’s call them common-good considerations.

Barrett: So those kinds of considerations are and always have been fair game and standard fare of constitutional decision making. I took you to be asking about public reaction to the court in particular. Like, should the court be taking account of its own skin? Should the court be taking account of the backlash that it will suffer?

Douthat: But why are those two things separable? Why is it OK to say: It’s all right to think about how this decision plays out for the health of the Republic as a whole, but it’s not OK to worry about mass backlash against the judiciary specifically?

Barrett: So if you think about it — I think maybe we’re talking about different things.

I do think thinking about the larger structural point is important. I think thinking about how our institutions will be affected in the long term is important because we are making decisions, as I said before, not just looking at what happened in the past but looking forward into what will happen in the future.

I guess what I would resist is saying that a decision should be dictated by short-term consequences or short-term pain in the institution. Brown v. Board visited a lot of backlash on the court, but that was the right thing to do, obviously. It needed to do it, despite the short-term cost.

So I guess it was maybe the short-term cost that I was resisting.

Douthat: Right. This will be the last question: One issue related to those kinds of short-term costs and long-term costs is the question of the Supreme Court’s own position in the balance of powers between the branches and its ability to get the other branches to heed its rulings.

The Supreme Court does not command the power of the purse, doesn’t command the military, doesn’t have police powers. What it has, in a sense, is prestige, public support, a historic constitutional role.

And we’re in a moment — and we don’t have to make this specific to the Trump White House — when it’s very easy to imagine, from either the left or the right, some present or future president deciding to test the court, Andrew Jackson-style, saying: Interesting ruling, Justice Barrett. Good luck enforcing it.

How do you think about that potential challenge, as a member of the court?

Barrett: Well, I think that you are absolutely right that just as the court must take account of the consequences on the institutional dynamics, say, between a current president and a future president, the balance of power between the executive branch and the legislative branch, that of course, those same kinds of institutional concerns for the long run are ones that play a part in the court’s separation of powers decisions and always have, because they also are reflected in concerns of the constitutional structure.

Douthat: OK, let me try that again: If a president defied the Supreme Court, what would you do?

Barrett: Well, as you say, the court lacks the power of the purse. We lack the power of the sword. And so, We interpret the Constitution, we draw on precedents, we have these questions of structure, and we make the most with the tools that we have.

Douthat: Justice Barrett, thank you so much for joining me.

Barrett: It’s a pleasure to be here. Thank you for having me, Ross.

Douthat: You’re very welcome.

Thoughts? Email us at [email protected].

This episode of “Interesting Times” was produced by Sophia Alvarez Boyd, Victoria Chamberlin, Andrea Betanzos and Raina Raskin. It was edited by Jordana Hochman. Mixing and engineering by Pat McCusker and Efim Shapiro. Cinematography by Elliot deBruyn, Valeria Verastegui, Nathan Taylor, Drew Loughlin and Kevin Baker. Video editing by Julian Hackney. Original music by Isaac Jones, Sonia Herrero, Pat McCusker and Aman Sahota. Fact-checking by Mary Marge Locker and Mary Mathis. Audience strategy by Shannon Busta. Video directed by Jonah M. Kessel. The director of Opinion Audio is Annie-Rose Strasser.

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