Rift Is Emerging Among Conservatives on SCOTUS

Barrett breaks with Thomas on 'history and tradition' approach
By Rob Quinn,  Newser Staff
Posted Jun 20, 2024 11:38 AM CDT
Rift Is Emerging Among Conservatives on SCOTUS
The US Supreme Court is seen on Friday, June 14, 2024, in Washington.   (AP Photo/Mariam Zuhaib)

Last week's decision on a man's attempt to trademark the slogan "Trump too small" wasn't exactly the most momentous issue the Supreme Court has dealt with lately, but it exposed what appears to be a growing rift between the court's conservatives. Justice Amy Coney Barrett agreed with Justice Clarence Thomas that the trademark application should be rejected, but she strongly criticized his use of history to decide the case. Analysts see her stance as a possible shift away from originalism, the approach favored by the court's conservatives, which holds that the Constitution should be interpreted strictly as the authors would have understood it when it was written.

  • "Wrong twice over." In her 15-page opinion, Barrett said Thomas was "wrong twice over" in his majority opinion, by using "loosely related cases" plucked from centuries ago and failing to justify the "hunting for historical forebears on a restriction-by-restriction basis" approach, Slate reports. The "laser-like focus on the history," she wrote, "misses the forest for the trees." The case, she wrote, could have been dealt with using a standard "grounded in both trademark law and First Amendment precedent."
  • The split. According to Politico, Justices Samuel Alito and Neil Gorsuch "seem to be squarely in Thomas' camp," while the positions of Chief Justice John Roberts and Justice Brett Kavanaugh are less clear.

  • Debate is "raging." "There is a very ongoing, current debate raging among the justices about how to interpret the Constitution across a range of cases and whether they need to adopt the same approach in all cases," University of California Berkeley law professor Amanda Tyler tells Politico.
  • A significant shift. "It would be too much to say" that Barrett is rejecting originalism, Matt Ford writes at the New Republic. "But she appears increasingly willing to call out other originalists when their evidence of a historical tradition is weak. Even more importantly, she is unwilling to let it be the exclusive means by which she reads the Constitution."
  • A big upcoming decision. CNN reports that the court's approach to history will be a major issue in the US v. Rahimi Second Amendment case, in which a ruling is expected in the coming days. In a controversial decision striking down a New York gun law two years ago, Thomas wrote that modern gun laws must be "consistent with this nation's historical tradition." The Rahimi case, however, challenges a federal law banning people under domestic violence restraining orders from owning guns, and there was no law addressing domestic violence when the Second Amendment was ratified. Politico notes that if Barrett breaks with Thomas again and at least one conservative justice joins her, along with the court's three liberals, they could uphold the law.
(More US Supreme Court stories.)

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