Supreme Court Justice Amy Coney Barrett is rejecting the notion that "history and tradition" should play a major part in deciding cases before the high court, CNN reported. A recent unanimous decision belies the friction between Barrett and Justice Clarence Thomas on this issue.
Last week, all nine justices ruled against a man seeking to trademark the slogan "Trump Too Small." Although the decision was unanimous, the rationale for getting there differed among the justices.
Barrett, in particular, picked on Thomas' reasoning using constitutional history for his opinion, saying he "is wrong twice over" in her concurrent opinion. She believed the merits of the case in relation to the law were more significant than anything else.
Notably, the three leftists on the court sided with part of her argument. This could signal a departure from strict originalism for Barrett, who was appointed by former President Donald Trump.
Barrett said in her opinion that "tradition has a legitimate role to play in constitutional adjudication" but that "the court’s laser-like focus on the history of this single restriction misses the forest for the trees." Perhaps Barrett sees some pitfalls of such a rigid interpretation.
However, legal experts are running with this as a clear departure for Barrett, who is the most recent conservative to join the bench. "It’s clear that Barrett thinks tradition is sometimes relevant – and that she may have some difference with Thomas about when and exactly how much," George Mason University law professor Ilya Somin said.
"But there’s not really a clear theory here," Somin added. Similarly, constitutional expert Tom Wolf of the Brennan Center for Justice at New York University’s Law School sees it as a split among the conservatives.
"Barrett’s critique of originalism definitely signals what seems to be a growing rift among the originalists on the court about the proper way to use history. There definitely is the potential formation here of an alternative or several alternative approaches to history that ultimately draw a majority," Wolf said.
Constitutional Accountability Center President Elizabeth Wydra said this was a sign of "a more nuanced approach to using that history" for the justices. "It’s much more complicated than that – history is much more contested than that," Wydra said.
It seems legal scholars have latched onto the debate between Barrett and Thomas because of the role history played in a landmark Second Amendment case. Thomas' decision for New York State Rifle & Pistol Association, Inc. v. Bruen stated that gun laws have to be "consistent with this nation's historical tradition" to stand.
Several restrictions on the Second Amendment have recently fallen based on Thomas' litmus test, which Barrett sided with in part. However, her concurrent opinion in that case also included the "limits on the permissible use of history" for such decisions.
Now, another case that is expected to be decided soon will put Thomas' assertions and Barrett's reservations to the test. US v. Rahimi, which centers around restrictions based on domestic violence accusations, will have to weigh the benefits of the two-year-old law versus the history of gun laws since none existed in the Founding Fathers' time.
Still, the friction between Barrett and Thomas on this one issue may not be as significant as legal scholars are hoping for. After all, Barrett still agreed with Thomas on both cases, suggesting that the law stands on its own despite challenges from different angles.
There's also room for disagreement between originalist justices to disagree on points while remaining united on the big picture, though it serves the left's cause more to see in-fighting. Whatever the future of this issue turns out to be, this won't be the slam-dunk the left is hoping for in dividing the solid conservative majority.
