Amy Coney Barrett Is Sick Of The Supreme Court's Bullsh*t
She's going hard at Clarence Thomas's entire judicial philosophy.
(Photo by Samuel Corum/Getty Images)
Let’s be clear — Amy Coney Barrett is a staunch conservative. Nothing about this article should give progressives hope that ACB will become the fulcrum of the Court or that her vote is somehow up for grabs. No, what Barrett is poised to be is the Great Concurrer. Not quite the same ring as the Great Dissenter, but here we are.
What’s rapidly becoming one of the defining characteristics of the conservative legal movement of the 2020s is when jurists scour the historical record to cherry-pick the historical examples that support their modern policy goals. They even want to employ AI to do the dirty work of misrepresenting history for them! But that’s what the Supreme Court majority did in New York State Rifle & Pistol Association v. Bruen, and CFPB v. Community Financial Services Association, and Dobbs v. Jackson Women’s Health.
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And the majority — authored by Clarence Thomas — was back on that bullshit in yesterday’s Vidal v. Elster, holding “TRUMP TOO SMALL” cannot be trademarked. Thomas wrote that the Lanham Act’s prohibition of the trademark of names did not violate the First Amendment because it was “of piece with a common-law tradition regarding the trademarking of names.”
Barrett, writing a concurrence, was critical of Thomas’s emphasis on “historical analogues.”
“That is wrong twice over,” she wrote. “First, the Court’s evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause. Second, the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”
That’s… pretty close to fighting words. Barrett advocated for “a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech.” She continued, “In my view, such restrictions, whether new or old, are permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.”
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But as on-point as the above rebuke of Thomas’s entire approach to judging is, Barrett goes harder. She calls out the cherry-picking of evidence and indicts the entire judicial philosophy:
“[T]he Court does not fully grapple with countervailing evidence,” she wrote.
Still, she added, [e]ven if the Court’s evidence were rock solid, I still would not adopt this approach.”
“The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,” she wrote. “But tradition is not an end in itself—and I fear that the Court uses it that way here.”
“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,” wrote Barrett.
She continues:
“In my view, the Court’s laser-like focus on the history of this single restriction misses the forest for the trees,” Barrett wrote in her Vidal concurrence. “I see no reason to proceed based on pedigree rather than principle. Besides, as the Court admits, its approach merely delays the inevitable: Eventually, the Court will encounter a restriction without a historical analogue and be forced to articulate a test for analyzing it.”
This isn’t the first time Barrett has seemed uncomfortable with the jurisprudence of some of her Republican colleagues on the Court. She previously said judges need to be “very, very careful” in using historical examples and that the practice resembles “looking over a crowd and picking out your friends.”
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But this is the clearest she’s been in calling out the problematic way the majority of the Court adjudicates cases.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
