A Republican-appointed U.S. Supreme Court justice is defending one of the court’s most momentous recent decisions while clarifying the differing functions of the judicial and legislative branches of the government. Justice Amy Coney Barrett, who was appointed to the nation’s highest court by President Donald Trump in 2020, sat down with Norah O’Donnell of CBS News for an hour-long interview on Sunday.
After discussing Barrett’s new book, “Listening to the Law: Reflections on the Court and Constitution” and a host of issues currently facing the Supreme Court, O’Donnell asked Barrett to explain why she joined her male colleagues in the 2022 Dobbs v. Jackson Women’s Health Organization decision that ultimately overturned Roe v. Wade and Casey v. Planned Parenthood.
“I’ll get technical since you asked me to be technical. So the doctrine that was at issue is called substantive due process. The constitutional provision that’s relevant is the Due Process Clause of the 14th Amendment,” Barrett began. “Of course, abortion or any medical procedure is not mentioned in the Constitution. And so, the grounding of Roe v. 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,” she explained.
Barrett observed that the Supreme Court “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” and are thus protected under the auspices of substantive due process, rather than being rights which are explicitly enumerated in the Constitution. “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,” the justice noted.
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However, numerous “rights” are still protected under the theory of substantive due process, including same-sex marriage, contraception, and others. In his concurring opinion in Dobbs, Justice Clarence Thomas suggested that the Supreme Court should reconsider substantive due process decisions and potentially overturn decisions such as Obergefell v. Hodges, which created a federal “right” to same-sex marriage. O’Donnell asked Barrett, “Are those now threatened? Because that has been the charge that has been made: if this Supreme Court can do away with abortion, [then] gay marriage and contraception and perhaps other things are next.”
“Dobbs was very specific, and it addressed one ‘right,’ and that was the abortion ‘right.’ And I think for those other cases, what you have to look at is, as I described, liberty under the Due Process Clause encompasses those things that Americans embrace that go without saying,” Barrett responded. “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.”
O’Donnell asked Barrett about high-profile criticisms of the Dobbs decisions, specifically citing former Democratic presidential nominee Hillary Clinton. “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,’” O’Donnell said. Barrett fired back, “I think people who criticize the court or who are outside say a lot of different things. … We have to tune those things out.”
Barrett carefully pointed out that the Dobbs decision did not outlaw abortion at the federal level but simply returned the question of abortion to legislators, noting that the judiciary is not a “political” branch of the government and that some decisions must be made by the political branches, the executive and the legislative. “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. What the court is trying to do is see what the American people have decided,” she said. “And sometimes the American people have expressed themselves in the Constitution itself, which is our fundamental law, [and] sometimes in statutes. But the court should not be imposing its own values on the American people. That’s for the democratic process.”
“Dobbs 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,” Barrett emphasized. “All of these kinds of questions, decisions that you mentioned that require medical judgments are not ones that the Constitution commits to the court, to decide how far into pregnancy the right of abortion might extend.”
“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,” Barrett noted. “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,” she observed. “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 in lines that reflect the views of the electorate.”
Barrett also rejected the characterization of the current Supreme Court as a conservative powerhouse, again citing the judiciary’s non-political nature. O’Donnell asked, “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?”
“I disagree with that conception of the Supreme Court, because the Supreme Court is an independent branch of government, and presidents appoint justices,” Barrett replied. “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.” She added, “The court deals with the law and the way that the Supreme Court works … isn’t political.”
Since the Dobbs decision, 16 states have enacted laws protecting unborn life at its earliest stages. Courts have blocked or temporarily halted those laws in four states.
LifeNews Note: S.A. McCarthy serves as a news writer at The Washington Stand.
