The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett | CNN Politics (2024)

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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.

A demonstrator holds a sign outside the U.S. Supreme Court as the justices hear arguments on former President Trump's claim of presidential immunity over criminal charges over his efforts to overturn the 2020 presidential election results in Washington, U.S., April 25, 2024. Bonnie Cash/Reuters Related article Abortion, guns, Trump and more: These are the Supreme Court’s biggest remaining cases

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 whento 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.

This photo taken from the website trumptoosmall.com shows the phrase “Trump too small” as a slogan for T-shirts and hats. From trumptoosmall.com Related article Supreme Court rejects ‘Trump Too Small’ trademark

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.

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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.

WASHINGTON, DC - JANUARY 06: Pro-Trump supporters storm the U.S. Capitol following a rally with President Donald Trump on January 6, 2021 in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election. Samuel Corum/Getty Images Related article What could happen if the Supreme Court sides with the January 6 rioters

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.

In this file photograph, Supreme Court Justice Samuel Alito Jr., left, and his wife Martha-Ann Alito, pay their respects at the casket of Reverend Billy Graham at the Rotunda of the U.S. Capitol Building in Washington, D.C., on February 28, 2018. An upside-down American flag, a symbol associated with Donald Trump's false claims of election fraud, was displayed outside of Alito's home days after Trump supporters stormed the U.S. Capitol, The New York Times reports. "It was briefly placed by Mrs. Alito in response to a neighbor's use of objectionable and personally insulting language on yard signs," Alito said in an emailed statement to the newspaper. Pablo Martinez Monsivais/AP/File Related article Analysis: Samuel Alito, caught on tape, reinforces why people are skeptical of the Supreme Court

“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.”

The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett | CNN Politics (2024)

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The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett | CNN Politics? ›

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.

Where did the idea of the Supreme Court come from? ›

Established by the United States Constitution, the Supreme Court began to take shape with the passage of the Judiciary Act of 1789 and has enjoyed a rich history since its first assembly in 1790.

How many Supreme Court justices are there? ›

The Supreme Court as composed June 30, 2022 to present.

Nine Justices make up the current Supreme Court: one Chief Justice and eight Associate Justices.

Who appointed Clarence Thomas? ›

Who is the oldest Supreme Court justice? ›

From oldest to youngest, the ages of the current Supreme Court justices are: Justice Thomas, 75. Justice Alito, 73. Justice Sotomayor, 69.

Can a Supreme Court justice be removed by the president? ›

The Constitution states that Justices "shall hold their Offices during good Behaviour." This means that the Justices hold office as long as they choose and can only be removed from office by impeachment. Has a Justice ever been impeached? The only Justice to be impeached was Associate Justice Samuel Chase in 1805.

Which is the most powerful Supreme Court in the world? ›

Summary. The Indian Supreme Court has been called “the most powerful court in the world” for its wide jurisdiction, its expansive understanding of its own powers, and the billion plus people under its authority.

Who is the only president to have served on the Supreme Court? ›

William Howard Taft was elected the 27th President of the United States (1909-1913) and later became the tenth Chief Justice of the United States (1921-1930), the only person to have served in both of these offices.

How many federal judges have been impeached? ›

As of September 2017, only 15 federal judges have been impeached, and only eight have been convicted. Three others resigned before completion of impeachment proceedings. A summary of federal judicial impeachments is available at the Federal Judicial Center's website.

Who is the longest serving justice? ›

William O. Douglas is the longest serving Supreme Court Justice, having served for 36 years and 209 days.

How many justices are Republican? ›

As of June 30, 2022, of the 9 justices of the Supreme Court, 6 were appointed by a Republican president, and 3 were appointed by a Democratic president.

Which Supreme Court justices are liberal? ›

As the conservative Supreme Court majority has won case after case in recent days, liberal dissenters are having their moment in the courtroom. Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson each took the rare step of reading provocative dissenting statements this past week.

How many Supreme Court justices did Obama appoint? ›

President Barack Obama made two successful appointments to the Supreme Court of the United States. The first was Judge Sonia Sotomayor to fill the vacancy created by the retirement of Justice David H.

Which president has appointed the most Supreme Court justices? ›

George Washington holds the record for most Supreme Court nominations, with 14 nominations (12 of which were confirmed).

Is Clarence Thomas liberal or conservative? ›

Supreme Court of the United States

After joining the Supreme Court, Thomas emerged as a member of the Court's conservative wing.

Who was the youngest person to be appointed to the Supreme Court? ›

Story was the youngest justice appointed to the Supreme Court; he was 32 when commissioned to the court in 1811. Story was one of two justices nominated to the Supreme Court by President Madison. He served during The Marshall Court and The Taney Court.

What was the reasoning behind the Supreme Court? ›

As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution. The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed.

Who decided the Supreme Court was for life? ›

Members of the Supreme Court are appointed by the President subject to the approval of the Senate. To ensure an independent Judiciary and to protect judges from partisan pressures, the Constitution provides that judges serve during “good Behaviour,” which has generally meant life terms.

Why was the U.S. Supreme Court built? ›

The building was designed on a scale in keeping with the importance and dignity of the Court and the Judiciary as a coequal, independent branch of the United States Government, and as a symbol of “the national ideal of justice in the highest sphere of activity.”

When did the Supreme Court term start? ›

By law, the U.S. Supreme Court's term begins on the first Monday in October and goes through the Sunday before the first Monday in October of the following year.

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