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At the Supreme Court, where a conservative majority is embracing history as a guide, there may be controversy over how many modern cases can be resolved by looking to the nation’s past.
Although Justice Clarence Thomas' decision in a major trademark case last week was unanimous, it sparked fierce debate led by Justice Amy Coney Barrett over the use of history in deciding the case.
Barrett, the newest conservative on the court, accused Thomas, the most senior fellow justice, of having a “laser-like focus on history” that “ignores the forest for the trees.”
This back-and-forth could signal a rethink by some members of the Court over when and how to apply originalism, the dominant legal theory among the Court's conservatives that demands that the Constitution be interpreted based on its original meaning.
Even a modest change could have huge consequences for major court cases, including a pending case that will likely draw heavily on history to decide whether Americans subject to domestic violence restraining orders can be barred from owning guns.
“Barrett’s critique of originalism certainly signals that there are growing differences among originalists on the court about the proper use of history,” said Tom Wolf, a constitutional law expert at the liberal-minded Brennan Center for Justice at New York University’s law school.
“There is certainly the potential here for creating an alternative, or several alternative, approaches to history that will eventually appeal to the majority,” Wolf said.
When the Supreme Court last week rejected a lawyer's motion to trademark the phrase “Trump Too Small,” all nine justices agreed with the outcome, but there was sharp disagreement over the majority's decision to cite the country's “history and tradition” in rejecting the trademark.
Barrett, who supported the Court's conclusion that a provision of federal trademark law prohibiting the registration of a person's name without his or her consent is constitutional, wrote a separate letter to express her displeasure with Thomas's reasoning for relying on “history and tradition” in his decision.
Barrett argued in a 15-page concurrence that this path is “twice wrong.” 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 in constitutional decision-making,” the Trump-nominated judge said that “the Court’s laser-like focus on the history of this single restriction ignores the forest for the trees” and sought to poke holes in the history- and tradition-first approach taken by Thomas and other conservative judges who agreed with her legal reasoning.
The late Justice Antonin Scalia, a leading proponent of originalism on the Supreme Court, once described his approach to interpreting the Constitution as “an easy job.” But the ongoing debate this term may reflect a recognition by some on the Court that history is often messy and nuanced in ways that don’t always yield easy answers.
“We could look at 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 — the history is much more disputed than that,” Wydra said. “And so this debate between two conservative judges, I think, brings a lot of light to the discussion.”
Many court watchers say it's too early to say much about the debate between Thomas and Barrett.
“It’s clear that Barrett thinks tradition is sometimes relevant — and she may have some disagreements with Thomas about when and how relevant that is,” said Ilya Somin, a law professor at George Mason University. “But there’s really no clear principle here.”
The court’s approach to history will be closely scrutinized in its blockbuster Second Amendment decision, expected in the coming days. In U.S. v. Rahimi, the justices will have to decide the fate of a federal law that bars people subject to domestic violence retraining orders from owning guns.
While a majority of the justices indicated during arguments in November that they would uphold the law, the real challenge for conservatives will be how to reconcile that decision with a two-year-old precedent holding that gun restrictions must have a historical connection to uphold them under the Second Amendment. In New York State Rifle & Pistol Association, Inc. v. Bruen, Thomas wrote that modern gun laws must be “consistent with the historical tradition of this country.”
But at the time of the country's founding there were no gun laws that explicitly dealt with domestic violence. And so to uphold the federal law, the court must at least clarify how this standard applies to modern laws.
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When Thomas wrote his majority decision in Bruen two years ago, Barrett fully agreed with Thomas' opinion. But she also wrote a brief concurrence to highlight “the limits on the permissible use of history” in deciding cases. One of them, she said, was identifying the historical date needed to determine whether a restriction was constitutional.
In the months and years since the Court’s decision in the Bruen case, the “history and tradition” framework has inspired judges across the U.S. to strike down a variety of gun restrictions, while also perplexing some jurists who have noted the hurdles that come with the new rule.
Justice Sonia Sotomore also addressed these issues in a concurrence letter issued last week in the trademark case.
“The majority seeks to reassure litigants and lower courts that a 'history-focused approach[h]' Here … citing Bruen brings prudence and practicality to the table,” he wrote. “To say that such assurances are not comforting would be an understatement. One only has to read a few of the lower court decisions applying Bruen to understand the confusion this Court has created.”
The court's other two liberals signed Sotomayor's concurrence. Barrett did not.
Last month, another division emerged in a case involving funding for the Consumer Financial Protection Bureau, a federal banking watchdog body created in response to the 2008 financial crisis. The payday lending industry sued the agency, claiming that the way Congress set up funding for it violates the Constitution's Appropriations Clause.
Writing with a 7-2 majority, Thomas dived deep into pre-colonial English history and found that Parliament — even as it tightened its grip on the government treasury — “did not micro-manage every aspect of the king's finances.”
In other words, the legislature gave the king some latitude, and this discretion for the executive continued into the early days of the United States. Based on that history, the Court upheld the modern agency's funding.
But in a remarkable concurrence that drew support from both liberal and conservative justices, Justice Elena Kagan stressed that the Court's historical analysis need not end at the end of the 18th century. Instead, Kagan wrote, the Court can look to 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 Sotomore in that analysis — and suggested that there may be different ways of thinking about history and tradition even among conservatives who take that approach to deciding cases.
“I see this as basically an evolving conversation among all of the justices of the court, and some of it is certainly driven by the results of some really ill-informed and highly damaging opinions from previous terms,” Wolf said, pointing to Bruen and the court’s decision two years earlier overturning Roe v. Wade.
“Some justices clearly understood the fundamental problems with those decisions, and the methodological problems with relying on history to decide cases at the time the Court was doing so,” he said.
In the trademark dispute, Vidal v. Elster, Thomas's legal reasoning for upholding a section of the Lanham Act broke new ground: it was, Sotomore wrote, the first time the Court had adopted an approach of history and tradition to decide a free speech dispute.
Looking back at the country’s “long history” of banning trademark names, Thomas cited numerous cases dating back to the 19th century and in courts outside the U.S.
“We find no evidence that the common law provides protection to an individual seeking to trademark another living person's name. In contrast, English courts have held that selling a product under another person's name can be actionable fraud,” they wrote. “This recognition also holds in our country.”
Thomas’s argument was also supported by Kavanaugh, Chief Justice John Roberts, and Justices Samuel Alito and Neil Gorsuch.
But Barrett, Kagan, Sotomore and Justice Ketanji Brown Jackson took a different path from those five justices.
Barrett's concurrence stated that the dispute could have been settled based on the Court's past precedent regarding trademark law, and emphasized that relying solely on the country's trademark history is not enough.
He wrote, “In my view, the historical record alone is not sufficient to demonstrate the constitutionality of this clause.”
He argued that even though the five-judge majority said it was not creating a new test in its opinion, “the rule that makes tradition moot is itself a judge-made test.”