Amy Coney Barrett Sounds Fed Up With Clarence Thomas’ Sloppy Originalism

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)

A minor dispute over a trademark registration erupted into a heated battle over originalism at the Supreme Court last week, splintering the justices into warring camps over the value and practicality of history in constitutional analysis. No surprise there—as the term accelerates toward a contentious finale, the tensions roiling major cases are bound to spill over into littler ones. What’s remarkable is who seized on this squabble over intellectual property to launch a scathing salvo against the conservative majority’s “laser-like focus” on “supposed history and tradition”: Justice Amy Coney Barrett, a conservative who presented as a true believer in originalism when joining the Supreme Court four years ago. Barrett’s latest opinion exudes disenchantment with the methodology, at least as it’s used by this court; it also suggests she has buyer’s remorse about signing on to Bruen, a significant expansion of the Second Amendment that’s arguably the most radical and unworkable “originalist” opinion she’s joined so far.

We will know soon enough. Last week’s squabble reads like shadowboxing over a much bigger decision to come: U.S. v. Rahimi, a follow-up to the Bruen decision. Rahimi gives the court an opportunity to walk back the most disastrous and lethal aspects of its Second Amendment extremism. Barrett now seems like she may be eager to take it.

Vidal v. Elster, last Thursday’s decision, is not the kind of case that usually makes headlines. Steve Elster is a labor lawyer who wanted to trademark the phrase “Trump too small,” inspired by Sen. Marco Rubio’s crude debate joke about Donald Trump’s hands in 2016. The Patent and Trademark Office, however, refused to register the trademark, citing a law that bars trademarks made up of a name “identifying a particular living individual except by his written consent.” (Needless to say, the former president did not give his consent.) Elster sued, alleging a violation of the First Amendment. He pointed out that the Supreme Court has held that two similar provisions of federal law violate free speech, one that bars disparaging trademarks and another that bars “immoral or scandalous” trademarks. So, he argued, the prohibition against trademarks that use other people’s names—the so-called names clause—should also be declared unconstitutional.

The Supreme Court unanimously ruled against Elster, upholding the statute. But the justices fractured badly on the reason why, dividing more or less into a 5–4 split. Writing for the five men, Justice Clarence Thomas relied exclusively upon history (or his version of it) to resolve the case. Typically, he explained, laws that discriminate on the basis of content—that is, their “topic,” “idea,” or “message”—are subject to heightened scrutiny under the First Amendment. And by targeting trademarks that reference other people, the “names clause” is a “content-based regulation of speech.” But Thomas then declared that the law is not constitutionally suspect because it aligns with the “history and tradition” of the nation “since the founding.” Trademark restrictions “have always turned on a mark’s content” yet “have always coexisted with the First Amendment,” so they represent an exception to the usual constitutional limitations. Embarking upon a grand journey from the 1700s through today, Thomas presented a smattering of comparable laws from the past to demonstrate this “historical rule.” In short, he concluded, it has always been done, so it always may be done. Case closed.

In a separate opinion, Barrett agreed with Thomas’ bottom line but sharply disagreed with pretty much everything else. His history-only approach, she wrote, was “wrong twice over”: Thomas both botched the relevant history and failed to make a persuasive case for its use in the first place. Start with “the court’s evidence.” Thomas’ law-office history, Barrett explained, consists of “loosely related cases from the late-19th and early-20th centuries” that do not “establish a historical analogue for the names clause.” His analysis of these cases is shallow and often dubious; Barrett highlighted unfounded inferences in Thomas’ skim of the historical record, questioning his generalizations from a handful of archaic decisions. She also noted that Thomas declined to “fully grapple with countervailing evidence,” citing old decisions that cut against his conclusory assertions.

Clearly, Barrett is growing tired of her colleague’s bogus originalism: She also criticized his highly selective frolic through the archives in last term’s Samia v. U.S., questioning his reliance on a somewhat random “snapshot” of history to cut back protections of the Sixth Amendment. “The court overclaims,” the justice wrote then, risking “undermining the force of historical arguments when they matter most.”

But this time, Barrett’s critique cuts much deeper: Thomas, she wrote, “never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.” The majority “presents tradition itself as the constitutional argument,” as though it is “dispositive of the First Amendment issue,” without any “theoretical justification.” In a passage that must have made the liberal justices proud, Barrett continued: “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. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.” Plucking out historical anecdotes, ad libbing some connective tissue, then presenting the result as a constitutional principle “misses the forest for the trees.” When applying “broadly worded” constitutional text, “courts must inevitably articulate principles to resolve individual cases.” This approach brings sorely needed “clarity to the law.”

Barrett sketched out a better path: assessing the “names clause” within a framework “grounded in both trademark law and First Amendment precedent.” When the government “opens its property to speech,” she wrote, restrictions are permissible so long as they aren’t cover for the “official suppression of ideas.” Thus, courts should uphold trademark laws if they “are reasonable in light of the trademark system’s purpose.”

Why did Barrett spill so much ink repudiating Thomas’ opinion when the two justices landed in the same place? Her opinion reads like a rebuttal of Bruen, Thomas’ 2022 decision establishing a novel right to carry guns in public—which Barrett joined in full. Bruen marked a sea change because it upended the way courts looked at firearm restrictions. Previously, the courts of appeals applied heightened scrutiny to gun laws, asking whether the regulation was carefully drawn to further public safety. SCOTUS applies this test in countless other contexts, including the First Amendment and equal protection. It requires judges to balance the interests on both sides, a well-worn tool of judicial review. Yet Thomas spurned this “means-ends scrutiny,” demanding that courts rely exclusively on the nation’s “history and tradition”: A gun restriction, he wrote, is only constitutional if it has a sufficient number of “historical analogues” from the distant past.

This brand-new test has flummoxed the lower courts and led to ludicrous outcomes—partly because judges are not historians and have no reliable way to produce a complete historical record, and also because American society has evolved to the point that a great deal of “tradition” now looks barbaric. This term, the Supreme Court has been confronted with the fallout from Bruen in a follow-up called Rahimi, which asks whether domestic abusers have a right to bear arms. During oral arguments in Rahimi, Barrett sounded deeply uncomfortable with what her court had wrought. Rahimi has not yet been decided. But Barrett’s concurrence in Elster reads like a preview of her opinion in that case. The justice seems to have second thoughts about pinning constitutional interpretation entirely on a court’s amateur historical analysis; she now seems to see the immense value in “adopting a generally applicable principle” that courts can apply across cases.

The liberal justices were right there alongside Barrett in Elster, gladly signing on to her more sensible approach to the case. Justice Sonia Sotomayor also wrote a separate concurrence raising many of Barrett’s objections, taking more explicit aim at Bruen and the “confusion” it has caused. And some of Barrett’s Elster concurrence echoes a recent opinion by Justice Elena Kagan—which Barrett notably joined—that offered an alternative to Thomas’ rigid focus on founding-era history in a case upholding the constitutionality of the Consumer Financial Protection Bureau.

This shadowboxing foreshadows a bitter split in Rahimi, though with Barrett and the liberals appear poised to wind up on the winning side. There’s no doubt that Barrett is still a Second Amendment enthusiast, but with one more vote, this bloc is well positioned to walk back the excesses of Bruen. What’s certain right now is that the justice, at a minimum, has serious doubts about the legitimacy and workability of this Supreme Court’s sloppy, results-oriented originalism. That doesn’t mean Barrett has abandoned her broader commitment to the conservative legal movement’s cause. But it does signal a disillusionment with conservative orthodoxies that could put her vote up for grabs in cases much more important than a trademark dispute.