The Volokh Conspiracy
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Professor Barrett's interview on CBS News
The American people don't know what a "ConLaw" professor is, don't know what "doctrine" means, and don't realize that ACB changed the "doctrine" in Dobbs.
CBS News posted a short excerpt of a TV interview with Norah O'Donnell and Justice Barrett. I do not think it went well. Consider this brief snippett:
O'Donnell: You wrote in the book that 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, committ suicide, and obtain abortion are not.
Barrett: Right, I'm describing the doctrine. I was a ConLaw professor for many years. Yes, I've described the doctrine in the book. And yes that is the state of the law. . . .
O'Donnell: But you also say in the book that the rights to marry and engage in sexual intimacy and use birth control are fundamental.
Barrett: Yes. And again I'm describing what our doctrine is and that is what we've said.
What are the problems here?
First, regular people do not know what a "ConLaw" professor is. ConLaw, CivPro, CrimPro, FedCourts, and other abbreviations are known to lawyers. But not to non-lawyers. When I say that Justice Barrett is still at her heart a law professor, I mean it. This is a vocation one cannot shake.
Second, regular people do not know what "doctrine" means in this context. Of course, Barrett is trying to explain that her book merely restates what the Court has held, and that she is not articulating her private views on marriage, abortion, and birth control. But people watching this clue will have no idea what "doctrine" is, a word she said three times in the span of about a minute.
Third, Barrett is using the word "fundamental" in the legal sense--a right that triggers strict scrutiny. Roe held that abortion was a fundamental right. Casey held that abortion was not a fundamental right, and abortion laws should be reviewed under the heightened "undue burden" standard. I think this is the test that Professor Barrett would have taught for years. O'Donnell, and most Americans, do not know how Barrett used the word "fundamental." Moreover, I think this explanation is incomplete. Dobbs held that abortion rights receive only deferential rational basis review. Justice Barrett cast the deciding fifth for that opinion. She is not merely describing doctrine. She changed the "doctrine." The right to contract was once deemed fundamental, but the Court changed course? And what would stop the Court from holding that other rights are not fundamental.
Years ago, I wrote that Barrett could benefit from media training. I can see how Barrett went through extensive media training. She kept referring back to the book, and repeating that the Court is trying to see what the American people decided, and stating that the Court should not impose its own values on the American people. These are the talking points. But she got tripped up by a fairly predictable question.
This was Justice Barrett's first TV interview. She cancelled an interview with the New York Times "The Daily" podcast. Her session at Lincoln Center with Bari Weiss does not seem to have been livestreamed. Hopefully future interview go better. Then again, ACB said that her husband and assistant screens the stuff she reads:
"To be in this job, you have to not care," she said, referring to the criticism. "You have to have a thick skin."
She added that she doesn't have social media and that her husband and one of her assistants screen material for her and determine whether to share it with her on a "need-to-know arrangement."
Sounds like an episode of South Park.
