A version of this article originally appeared on Bloomberg Lawpart of Bloomberg Industry Group, Inc. (800-372-1033), and is reprinted here with permission. The footnotes contain material that was not included in the Bloomberg Law version of the article, which you may consider bonus content for Original Jurisdiction subscribers.
“I assure you, I have a mind of my own.”
This is how then-Judge Amy Coney Barrett reacted in her Confirmation hearingswhen Senator Chris Coons (D-Del.) asked her to what extent she would follow the jurisprudence of the late Justice Antonin Scalia (for whom she had clerked). She struck a similar tone in responses to written questions from the late Senator Dianne Feinstein (D-Calif.). repeated “If I am confirmed, you will get Judge Barrett, not Judge Scalia.”
As she completes her fourth term on the U.S. Supreme Court, Judge Barrett makes it clear that she has her own opinions, and when she disagrees, she separates herself from her conservative colleagues—particularly on the interesting and important question of how history should be considered when interpreting the Constitution.
Make no mistake: Barrett is a conservative, and she believes that history must play a role in constitutional law, as conservatives generally do. She joined the majority opinion in Dobbs v. Jackson – Women’s Health Organizationwhich repealed Roe v. Wade and rejected a constitutional right to abortion, and New York State Rifle & Pistol Association v. Bruenwhich instructed lower courts that review gun laws to decide whether they are “consistent with the nation’s historic tradition of gun regulation” – a test generally viewed as favorable to gun rights.
But when it comes to relying heavily on history and tradition in interpreting the Constitution – the approach taken by Justice Samuel Alito in Dobbsby Judge Clarence Thomas in Bruenand of lower court judges who try to follow those decisions – she has some concerns. In a separate agreement in Bruenshe raised questions about the “permissible use of history” in interpreting the Constitution – and warned against giving history “more weight than it can legitimately bear”.
This was not Barrett’s first expression of skepticism about the usefulness of history. Consider her acceptance in the case of Fulton v. the City of Philadelphiaon the question of whether a Catholic social service agency could refuse to recognize same-sex couples as foster parents despite anti-discrimination laws: “Although history plays a large role in this debate, I find the historical record to be more silent than supportive on the question of whether the founding generation understood the First Amendment to require, at least in certain circumstances, religious exemptions from generally applicable laws.”
Last year, Judge Barrett went one step further. Samia v. United StatesOn the question of whether an admission by a non-testifying co-defendant violates the Confrontation Clause, Justice Thomas wrote an opinion for the Court that relied in part on historical practice in finding that no violation had occurred. Barrett, however, did not agree with that view.
Although she agreed with the conclusion that there was no constitutional violation, Barrett declined to join the history-related portion of the Thomas opinion—which she dismissed as “not relevant.” She concluded her separate concurrence by saying, “While history is often important and sometimes crucial, we should use it nuancedly. Otherwise, we risk undermining the power of historical arguments when they matter most.”
Last week, Barrett took the gloves off. Although she was a sophomore in college when Thomas joined the court in 1991, making him nearly 30 years her senior, she was not afraid to disagree with him forcefully.
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In Vidal against Magpiea trademark case concerning the constitutionality of the Lanham Act’s “name clause,” Thomas wrote an opinion defending the clause against a Challenge of the First Amendment— relying heavily on history. Because “a tradition of restricting trademark registration of names coexisted with the First Amendment,” there was no constitutional problem in denying an application to register “Trump Too Small” as a clothing trademark.
Once again, Barrett agreed with Thomas’ conclusion but vehemently rejected his history lesson. In a concurrence joined by the three liberal justices, Barrett called Thomas’ approach “twice wrong.” She questioned the accuracy of his historical analysis but complained that “the Court never explains why seeking historical antecedents on a limitation-by-limitation basis is the right way to analyze the constitutional question.”
Barrett argued instead for a standard based less on history and more on the purposes of trademark law and First Amendment precedent. Under that standard, restrictions on trademark registration would be permissible “so long as they are reasonable in light of the purpose of the trademark system to facilitate source identification.”
Thomas and Barrett are both conservatives and originalists. Their sharp disagreement on an issue crucial to originalism –how to use history and tradition in constitutional analysis– attracted attention.
Some conservatives and originalists expressed concerns about Barrett’s Vidal against Magpie Professor Michael Ramsey of the University of San Diego expressed some agreement with Barrett, recommended Their approach to “adequacy” is not based on the original meaning of the Constitution—the touchstone of originalist analysis.
Professor Josh Blackman of the South Texas College of Law questioned Barrett’s approach, which he described as a “means-ends balancing test” – exactly the kind of test that Bruen rejected” – and not based on originalism: “Despite all the criticism Barrett makes of the majority’s originalist analysis, she does not herself offer an originalist analysis.”
This methodological debate may seem obscure or abstruse to some. Why is it important?
For better or worse, the Supreme Court and lower courts are increasingly turning to history when deciding the meaning of the Constitution. Deciding how and why history can be used in interpreting the Constitution will therefore determine what rights we have as Americans, how much power the government has over its citizens, and more. In fact, we can expect two concrete examples in the near future.
First United States v. RahimiThe court will decide whether it violates the Second Amendment to prohibit people who have domestic violence restraining orders from owning firearms. History and tradition are expected to play an important role.
Second, pay attention to the historic discussion when the Supreme Court decides Trump against the United Statesrelating to whether and to what extent a former president enjoys immunity from criminal prosecution.
The debate over history is not limited to the conservative wing of the court—and appealing to history does not always produce conservative results. Consumer Financial Protection Bureau v. Community Financial Services Association, Thomas wrote a majority opinion rejecting a challenge to the CFPB’s funding mechanism, citing in part “the history against which this legislation was enacted and the practice of Congress immediately following ratification.”
And in a notable concurrence, Justice Elena Kagan found additional support for the majority’s conclusion by looking at historical examples of funding structures used by Congress after the passage of the Budget Clause. Such reliance on history and tradition after the law’s passage is controversial, especially on the right – and was criticized by a prominent conservative jurist, Judge Kevin Newsom of the Eleventh Circuit, in a Speech in February at Harvard Law School. But Kagan was supported in her approval of the CFPB not only by her liberal fellow justices but also by—yes, you guessed it—Barrett.
It’s too early to say who will prevail in this debate over the use of history and tradition in interpreting the Constitution, but there’s no denying that Judge Barrett has her own opinions – and isn’t afraid to voice them.
