The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett

On a Supreme Court where the conservative supermajority increasingly leans on history as a guide, a dispute may be simmering over how many modern cases can be resolved by looking to the nation’s past.

Though Justice Clarence Thomas’ decision in a major trademark case last week was unanimous, it prompted a sharp debate led by Justice Amy Coney Barrett over the use of history to decide the case.

Barrett, the newest conservative on the court, accused Thomas, the most senior associate justice, of a “laser-like focus on the history” that “misses the forest for the trees.”

The back-and-forth could signal a recalibration by some members of the court of how and when to apply originalism, the dominant legal doctrine among the court’s conservatives that demands the Constitution be interpreted based on its original meaning.

Even a slight change could have enormous consequences for the court’s blockbuster cases, including a pending case that is likely to focus heavily on history to decide whether Americans who are the subject of domestic violence restraining orders can be barred from owning guns.

“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,” said Tom Wolf, a constitutional law expert with the liberal-leaning Brennan Center for Justice at New York University’s law school.

“There definitely is the potential formation here of an alternative or several alternative approaches to history that ultimately draw a majority,” Wolf said.

A lewd trademark gets historic treatment

When the Supreme Court last week rejected a lawyer’s bid to trademark the phrase “Trump Too Small,” all nine justices agreed on the outcome, but strong disagreements arose over the majority’s decision to invoke the nation’s “history and tradition” to rebuff the trademark.

Barrett, who endorsed the court’s conclusion that a provision of federal trademark law barring the registration of an individual’s name without that person’s consent is constitutional, wrote separately to express her displeasure with the reasoning of Thomas’ decision to rely on “history and tradition.”

That route, Barrett argued in a 15-page concurrence, “is wrong twice over.” The court’s three liberals signed on to parts of Barrett’s opinion.

Though Barrett acknowledged in her opinion that “tradition has a legitimate role to play in constitutional adjudication,” the Trump nominee said that “the court’s laser-like focus on the history of this single restriction misses the forest for the trees” and sought to poke holes in the history and tradition-first route taken by Thomas and the other conservative justices who agreed with his legal rationale.

The late Justice Antonin Scalia, a leading proponent of originalism on the Supreme Court, once described his approach to interpreting the Constitution as a “piece of cake.” But the debate playing out this term may be a recognition from some on the court that history is often messy and nuanced in a way that doesn’t always yield easy answers.

“What we could be seeing is a more nuanced approach to using that history,” said Elizabeth Wydra, president of the progressive Constitutional Accountability Center.

“It’s much more complicated than that – history is much more contested than that,” Wydra said. “And so to have this debate between two conservative justices, I think, brings a lot of light to the discussion.”

Several court watchers said it is far too early to read too much into the debate between Thomas and Barrett.

“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,” said Ilya Somin, a law professor at George Mason University. “But there’s not really a clear theory here.”

The ‘limits’ of history

The court’s approach to history will be closely scrutinized in its blockbuster Second Amendment decision expected in the coming days. In US v. Rahimi, the justices must decide the fate of a federal law that bars people who are the subject of domestic violence retraining orders from owning guns.

While a majority of the justices indicated during arguments in November that they will uphold the law, the real challenge for the conservatives will be how to square that decision with a two-year-old precedent that held gun prohibitions must have historical ties to survive under the Second Amendment. In New York State Rifle & Pistol Association, Inc. v. Bruen, Thomas wrote that modern gun laws must be “consistent with this nation’s historical tradition.”

But there were no gun laws on the books at the nation’s founding that dealt explicitly with domestic violence. And so to uphold the federal law, the court will have to likely have to at least explain how that standard applies to modern laws.

When Thomas issued his majority decision in Bruen two years ago, Barrett joined Thomas’ opinion in full. But she also penned a brief concurrence to highlight the “limits on the permissible use of history” in deciding cases. Among them, she said, was identifying the historical date needed to assess whether a restriction was constitutional.

In the months and years following the court’s decision in Bruen, the “history and tradition” framework has led judges across the US to strike down various gun restrictions while also perplexing some jurists who have noted the obstacles that accompany the new rule.

Justice Sonia Sotomayor, too, noted those issues in a concurrence she issued last week in the trademark case.

“The majority attempts to reassure litigants and the lower courts that a ‘history-focused approac[h]’ here is sensible and workable, by citing … Bruen,” she wrote. “To say that such reassurance is not comforting would be an understatement. One need only read a handful of lower court decisions applying Bruen to appreciate the confusion this Court has caused.”

The court’s other two liberals signed on to Sotomayor’s concurrence. Barrett did not.

History saves banking watchdog

Last month, another split emerged in a case involving the funding for the Consumer Financial Protection Bureau, a federal banking watchdog created in response to the 2008 financial meltdown. The payday lending industry sued the agency, claiming that the way Congress set up its funding violated the Constitution’s appropriation clause.

Writing for a 7-2 majority, Thomas dived deeply into pre-colonial English history and found that parliament – even as it tightened its grip on the government’s purse – did not “micromanage every aspect of the king’s finances.”

The legislature, in other words, gave the king some latitude and that discretion for the executive continued in the early days of the United States. Based on that history, the court upheld the modern agency’s funding.

But in a striking concurrence that captured support from both liberal and conservative justices, Justice Elena Kagan asserted that the court’s historic analysis need not end with the late-18th century. Instead, Kagan wrote, the court could look at more modern times – a “continuing tradition” to decide the constitutionality of a government policy.

Barrett and Justice Brett Kavanaugh, both members of the court’s conservative wing, joined that analysis, along with Sotomayor – suggesting that there may be different ways of thinking about history and tradition even among the conservatives who have ushered in that approach to deciding cases.

“I see this basically as an evolving dialogue amongst all the justices on the court and some of it is certainly being informed by the aftermath of some really ill-informed and deeply damaging opinions from earlier terms,” said Wolf, pointing to Bruen and the court’s decision two years ago overturning Roe v. Wade.

“Certain justices clearly understood the substantive problems with those rulings and also the methods problems with relying on history as dispositive in those cases at the time the court was doing it,” he added.

Thomas looks to English courts in trademark fight

In the trademark dispute, Vidal v. Elster, Thomas’ legal reasoning for upholding the section of the Lanham Act at issue broke new ground: It was, Sotomayor wrote, the first time the court had taken the history and tradition approach to decide a free speech controversy.

Training his sights on the nation’s “long history” of maintaining restrictions on trademarking names, Thomas invoked a series of cases dating as far back as the 19th Century and from courts outside the US.

“We see no evidence that the common law afforded protection to a person seeking a trademark of another living person’s name. To the contrary, English courts recognized that selling a product under another person’s name could be actionable fraud,” he wrote. “This recognition carried over to our country.”

Thomas’ rationale was joined by Kavanaugh, Chief Justice John Roberts, and Justices Samuel Alito and Neil Gorsuch.

But Barrett, Kagan, Sotomayor and Justice Ketanji Brown Jackson parted ways with those five justices.

Barrett’s concurrence said the dispute could have been dealt with based on the court’s past precedent with trademark law and stressed that just leaning on the nation’s trademark history wasn’t good enough.

“In my view, the historical record does not alone suffice to demonstrate the clause’s constitutionality,” she wrote.

She went on to argue that even though the five-justice majority said it wasn’t creating a new test in its opinion, “a rule rendering tradition dispositive is itself a judge-made test.”

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