A rift is emerging among the Supreme Court’s conservatives — and it could thwart the court’s recent march to expand gun rights.
On one side is the court’s oldest and most conservative justice, Clarence Thomas. On the other is its youngest member, Amy Coney Barrett.
The question at the center of the spat may seem abstract: How should the court use “history and tradition” to decide modern-day legal issues? But the answer may determine how the court resolves some of the biggest cases set to be released in the coming days, particularly its latest foray into the Second Amendment right to bear arms.
If the court adheres to a strict history-centric approach, as Thomas favors, it will likely strike down a federal law denying firearms to people under domestic violence restraining orders.
But Barrett recently foreshadowed that she is distancing herself from that approach. If she breaks with Thomas in the gun case, known as United States v. Rahimi, and if she can persuade at least one other conservative justice to join her, they could align with the court's three liberals to uphold the gun control law.
That outcome would avoid the certain political backlash that would result from a high court declaration that alleged domestic abusers have a constitutional right to carry a gun. Thomas, famous for his intransigence, might not care about such backlash, but the more pragmatically minded Barrett is surely aware of it.
“It does seem to me that there’s a fight going on, and Rahimi played an important role in provoking it,” said Reva Siegel, a professor at Yale Law School who is an expert on legal history.
The dispute over the historical approach — part of a legal philosophy known as originalism — also could have implications for Donald Trump’s pending bid to have the high court declare him immune from prosecution for attempting to subvert the 2020 election. The potential outcomes in that case, though, are less clear than in the gun case.
For the moment, the battle lines in this civil war among the court’s six conservatives remain somewhat murky. Justices Samuel Alito and Neil Gorsuch seem to be squarely in Thomas’ camp, while Chief Justice John Roberts and Justice Brett Kavanaugh are being cagey about where they stand.
“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,” said University of California Berkeley law professor Amanda Tyler.
Barrett skewers Thomas
The divide became evident last week as the court ruled on what was expected to be an amusing but not terribly significant case over a trademark application for crude anti-Trump T-shirts.
Despite the trivial subject matter, Barrett squared off with Thomas in such a confrontational manner that they seemed to be really fighting about something else.
“I don’t think this is about T-shirts at all,” Tyler said.
Thomas wrote the majority opinion rejecting the trademark applicant’s claim. Barrett (and all the other justices) agreed with that bottom-line result. The quarrel came down to methodology.
In a concurring opinion, Barrett used unusually blunt terms to skewer Thomas’ history-based rationale for denying the trademark. She described his approach as “wrong twice over,” and she made clear that her gripes went far beyond this case alone.
“I feel like this is a really stark break,” said Sarah Isgur, a former Justice Department spokesperson during the Trump administration who’s now a prominent Supreme Court analyst.
Barrett complained in her 15-page concurrence that her conservative colleagues have become so enamored of history that they’re now employing it even when the record is ambiguous and the purpose of embracing a retrospective approach is unclear.
“The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,” Barrett wrote, using the Latin term for the principle that courts should adhere to past rulings. “But tradition is not an end in itself — and I fear that the Court uses it that way here.”
Barrett, a Trump appointee, added what could be interpreted as a jab at the very premise of originalism, which has been a hallmark of the conservative legal movement for decades.
“It presents tradition itself as the constitutional argument. … Yet what is the theoretical justification for using tradition that way?” she wrote.
Barrett’s next critique amounts to fighting words among legal conservatives: She compared Thomas’ approach to the kind of amorphous, multi-pronged legal tests that conservatives frequently accuse liberal judges of concocting.
“Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test,” she asserted.
Barrett’s change of heart
The disagreement over history is notable because, just two years ago, Barrett appeared to be fully on board with the originalist approach that Thomas has long championed.
In 2022, the court used deep dives into the historical record to justify rulings that reverberated across the nation: the Dobbs decision overturning the federal constitutional right to abortion and the Bruen ruling invalidating some permitting laws for gun owners.
In Dobbs, five conservative justices (minus Roberts) relied on the lack of “historical support” for abortion rights. And in Bruen, in a landmark opinion written by Thomas, the court said gun control measures can be upheld only if analogous restrictions existed in early American history.
Barrett joined both those opinions in their entirety, but now she’s sending an unmistakable signal that there are limits to the utility of history in resolving today’s hard constitutional questions.
She’s hardly alone in voicing skepticism. The court’s use of history in Dobbs and Bruen set off a furious debate among legal scholars, historians and judicial gatherings about whether the justices got the history right — and about the overall wisdom of the effort. Even Saturday Night Live weighed in on the shortcomings of turning to the 17th and 18th centuries to resolve 21st century disputes over issues like abortion.
In her concurrence in the trademark case, Barrett joined in some of those critiques, accusing her fellow conservatives of taking too narrow a view of what sort of past regulation qualifies as relevant enough to justify a government practice in the present.
“In my view, the Court’s laser-like focus on the history of this single restriction misses the forest for the trees,” she added. “I see no reason to proceed based on pedigree rather than principle.”
A less demanding, more flexible historical test could lead the justices to uphold the gun restriction aimed at domestic abusers even in the absence of clear analogs from the founding era. But such flexibility would likely require Barrett and at least one other conservative to pivot away from the strict approach of Bruen. When the justices heard oral arguments last fall, some of the conservative justices seemed to be searching for a way to do just that.
Last week’s trademark case wasn’t the first time Barrett has unfurled the yellow caution flag as the court turned to history to resolve a case. Almost a year ago, in a case involving the admissibility of confessions by co-conspirators, Barrett again accused Thomas of making too much of a very limited historical record.
“The Court overclaims. That is unfortunate,” Barrett wrote in a solo concurrence, referring to Thomas’ majority opinion. “While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most,” she declared.
And in a speech last year at Catholic University, Barrett reiterated the point. "We have to be very, very careful in the way that we use history," she said, adding that deploying historical evidence to advance a legal conclusion can be like “looking over a crowd and picking out your friends.”
What does this mean for Trump?
The impact of the Barrett-Thomas quarrel on Trump’s presidential immunity claim — arguably the biggest case of the court’s current term — is harder to predict. But with no explicit discussion of that immunity in the Constitution, both sides in the case have turned to history to advance their arguments.
Trump’s attorneys have noted that no sitting or former president had ever faced criminal charges before Trump.
Meanwhile, special counsel Jack Smith, who has charged Trump with conspiring to deprive Americans of their right to vote in the 2020 election, notes that the founders’ skepticism toward executive power drew from British kings running rampant over their subjects' rights.
“It does seem to me that Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see ‘history and tradition’ moving in the future,” said Catholic University law professor Jennifer Mascott, who clerked for Thomas at the Supreme Court and Kavanaugh when he was an appeals court judge. “Justice Barrett is basically raising questions that could really shift and perhaps limit the impact of the way specific [historical] examples are used.”
Barrett’s step away from hard-core originalism comes in the wake of Trump giving a less-than-stellar review to his three Supreme Court nominees: Gorsuch, Kavanaugh and Barrett. It has contributed to grumbling from some conservatives that she isn’t proving to be as doctrinaire across the board as they’d have liked.
“You see justices after three or more years on the court coming into their own,” said Adam Feldman, founder of Empirical SCOTUS, a blog that publishes statistical analysis of the Supreme Court. “She’s developing a jurisprudence at this point that isn’t extremely parallel to any other justice’s. I’ve heard from a fair number of conservatives right now who are not thrilled with any of the Trump picks, that they’re not Alito or Thomas, and Barrett has been kind of soft on some of these issues.”
Where do Roberts and Kavanaugh stand?
Whether Barrett can succeed in pumping the brakes on the court’s use of history likely will depend on two other conservative justices: Roberts and Kavanaugh, both of whom, like Barrett, have occasionally been willing to break with the court’s right flank.
So far, those two justices have not publicly revealed where they stand in the current dispute. Notably, in the trademark case, they did not sign onto Barrett’s concurrence — but they also did not sign the portion of Thomas’ opinion that most directly responded to Barrett’s critiques.
Instead, they issued a terse, one-paragraph opinion that said Barrett “might well” be right, but the question she raised could be left for another case and another day.
Isgur, the former DOJ spokesperson turned Supreme Court analyst, said she reads the opinions to suggest that Roberts and Kavanaugh are closer to Barrett’s view on the utility of history than they are to the strict originalism of Thomas and Alito.
“The Kavanaugh/Roberts opinion is really just a shorter version of what she wrote,” said Isgur, who recently co-authored a POLITICO magazine article arguing that Roberts, Kavanaugh and Barrett have emerged at the center of a court that is better viewed as split 3-3-3, rather than 6-3.
Though Roberts and Kavanaugh did not join Barrett’s concurrence, the court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — each signed on to all or parts of it. (Kagan, the court’s leading dealmaker on the left, endorsed Barrett’s opinion in its entirety.)
It also appears to be the first opinion ever issued by the court in which four female justices all joined an opinion without any male justice also signing on. (The court never had as many as four women justices until Jackson, a nominee of President Joe Biden, was confirmed in 2022.)
That gender divide may be another clue that Barrett’s opinion presages her joining with the court’s liberals in the pending case about denying guns to domestic abusers.
“Rahimi is, in part, about gender,” Tyler said. “It’s about domestic violence.”
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