Justices Barrett And Thomas Part Ways On The Use Of History In Con Law

Justice Barrett is delivering on assurances she gave at her confirmation hearings: ‘I assure you, I have my own mind.’

Justices Amy Coney Barrett and Clarence Thomas, after Justice Thomas swore in Justice Barrett (photo by Nicholas Kamm/AFP via Getty Images).

A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece, which you can think of as bonus content for Original Jurisdiction subscribers.

“I assure you, I have my own mind.”

This is how then-Judge Amy Coney Barrett responded at her 2020 confirmation hearings, when Sen. Chris Coons (D-Del.) questioned her about how much she’d follow the jurisprudence of the late Justice Antonin Scalia (for whom she clerked). She sounded similar notes in responses to written questions from the late Sen. Dianne Feinstein (D-Calif.), stating repeatedly that “if I am confirmed, you would be getting Justice Barrett, not Justice Scalia.”¹

As she completes her fourth Term on the U.S. Supreme Court, Justice Barrett is making amply clear that she has her own mind. She’s parting ways with fellow conservatives when she disagrees—especially on the interesting and important issue of how to use history when interpreting the Constitution.

Make no mistake: Barrett is a conservative, and she believes history has a role to play in constitutional law, as conservatives generally do. She joined the majority opinions in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and rejected a constitutional right to abortion, and New York State Rifle & Pistol Association v. Bruen, which directed lower courts reviewing gun laws to decide whether they are “consistent with the Nation’s historical tradition of firearm regulation”—a test widely viewed as favorable to gun rights.

But when it comes to relying heavily on history and tradition in constitutional interpretation—the approach taken by Justice Samuel Alito in Dobbs, by Justice Clarence Thomas in Bruen, and by lower-court judges trying to follow these decisions—she has some concerns. For example, in a separate concurrence in Bruen, she raised questions about “the permissible use of history” in constitutional interpretation—and cautioned against giving history “more weight than it can rightly bear.”²

This wasn’t Barrett’s first expression of skepticism toward the utility of history. Consider her concurrence in the 2021 case of Fulton v. City of Philadelphia, about whether a Catholic social-services organization could refuse to certify same-sex couples as foster parents, antidiscrimination law notwithstanding: “While history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances.”³

Last year, Justice Barrett dialed it up a notch. In Samia v. United States, about whether the admission of a nontestifying codefendant’s confession violated the Confrontation Clause, Justice Thomas authored an opinion for the Court relying in part upon historical practice in finding no violation—but Barrett didn’t go along.

Although she agreed with the bottom-line conclusion of no constitutional violation, Barrett declined to join the history-focused portion of the Thomas opinion—which she dismissed as “beside the point.” She concluded her separate concurrence as follows: “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.”

Then last week, Barrett took the gloves off. Even though she was a college sophomore when Thomas joined the Court in 1991, making him almost three decades her senior, she wasn’t afraid to disagree with him—vigorously.

---

The Dispatch: Home for the Politically Homeless.

Are you tired of sensationalized news that prioritizes outrage? Consider signing up for The Dispatch.

The Dispatch provides engaged citizens with fact-based reporting and commentary on law, policy, and culture—informed by conservative principles. More importantly, they created a community and forum for intelligent discussion among the “politically homeless” that’s one of the more high-minded comments sections on the Internet. 

Join 400,000+ loyal readers and make The Dispatch your news home.

Original Jurisdiction readers: Claim your exclusive 30-day, all-access FREE trial today.

---

In Vidal v. Elster, a trademark-law case about the constitutionality of the “names clause” of the Lanham Act, Thomas wrote an opinion upholding the clause against a First Amendment challenge—and relied heavily on history in doing so. Because “a tradition of restricting the trademarking of names has coexisted with the First Amendment,” there was no constitutional problem with rejecting an application to register “Trump Too Small” as a clothing trademark.

Once again, Barrett agreed with Thomas’s ultimate conclusion, but took a hard pass on his history lesson. In a concurrence joined by the three liberal justices, Barrett called Thomas’s approach “wrong twice over.” She disputed the accuracy of his historical analysis, but more importantly, she complained that “the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.”

Barrett instead advocated a standard focused less on history and more on the purposes of trademark law and First Amendment precedent. Under this standard, restrictions on trademark registration would be “permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.”

Thomas and Barrett are both conservatives and originalists. Their vigorous disagreement on a critical question for originalism—how to use history and tradition in constitutional analysis—garnered notice.

Some conservatives and originalists raised concerns about Barrett’s Vidal v. Elster concurrence. Professor Michael Ramsey of the University of San Diego, while expressing some agreement with Barrett, suggested her “reasonableness” approach isn’t based on the original meaning of the constitution—the touchstone for originalist analysis.

Professor Josh Blackman of the South Texas College of Law also questioned Barrett’s approach, which he described as a “means-ends balancing test—the exact sort of test that Bruen rejected”—and not grounded in originalism: “For all of Barrett’s criticism of the majority’s originalist analysis, she offers no originalist analysis of her own.”

This methodological debate might seem obscure or abstruse to some. Why does it matter?

For better or worse, the Supreme Court and lower courts are increasingly turning to history to decide the meaning of the Constitution. Settling how and why history can be used in constitutional interpretation will therefore shape what rights we enjoy as Americans, how much power government has over its citizens, and more. In fact, expect two concrete examples in the very near future.

First, in United States v. Rahimi, the Court will decide whether it violates the Second Amendment to prohibit the possession of firearms by persons subject to domestic-violence restraining orders. Expect history and tradition to play major roles.⁴

Second, look for historical discussion when the Supreme Court decides Trump v. United States, concerning whether and to what extent a former president enjoys presidential immunity from criminal prosecution.

The debate over history isn’t confined to the conservative wing of the Court—and relying on history doesn’t always yield conservative outcomes. In Consumer Financial Protection Bureau v. Community Financial Services Association, Thomas wrote a majority opinion rejecting a challenge to the CFPB’s funding mechanism, based in part “on the history against which that text was enacted, and congressional practice immediately following ratification.”

And in a noteworthy 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 enactment of the Appropriations Clause.⁵ Such reliance on post-enactment history and tradition is controversial, especially on the right—and was criticized by a prominent conservative jurist, Judge Kevin Newsom of the Eleventh Circuit, in a February speech at Harvard Law School. But Kagan was joined in her CFPB concurrence not just by her fellow liberal justices, but also by—yes, you guessed it—Barrett.⁶

It’s too early to say who will prevail in this debate over the use of history and tradition in constitutional interpretation. But there’s no denying that Justice Barrett has her own mind—and isn’t afraid to speak it.

1. Although she is most definitely her own justice, Justice Barrett has frequently acknowledged and expressed gratitude for her mentors, including Justice Scalia and Judge Laurence Silberman of the D.C. Circuit, for whom she also clerked. After Judge Silberman’s passing in 2022, she spoke with me for the obituary I published in these pages, sharing frank and often funny recollections.

2. Her concurrence notwithstanding, Barrett joined Thomas’s majority opinion in Bruen in full. But according to Mark Joseph Stern of Slate, her Vidal v. Elster opinion “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.”

For additional criticism of Bruen—specifically, its reliance on legislative inaction—see this thoughtful piece by Professor Fred Vars, The Dog That Didn’t Bark Is Rewriting the Second Amendment. As noted by Vars, one prominent critic of relying on legislative inaction was Justice Scalia, who argued in a 1987 opinion that it is impossible to “draw any conclusions regarding [legislative] intent from the failure to enact legislation.”

3. In her Fulton concurrence, Barrett addressed the controversy around Employment Division v. Smith, in which the Court (in an opinion by Justice Scalia) held that “a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise.” Critics of Smith have cited history in arguing for its overruling, but Barrett opined that “the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.”

But in Fulton, the Court did not reach the issue of whether Smith should be overruled—and Barrett was fine with that. As explained in her concurrence, deciding Fulton did not require revisiting Smith, and figuring out what should replace Smith presents several difficult questions.

4. Not long after this column was originally published on Bloomberg Law, the Court issued its eagerly awaited opinion in Rahimi. By a vote of 8-1, the Court held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”

In his opinion for the Court in Rahimi, Chief Justice John Roberts explained that “the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition” (emphasis added). This reminded me of what Justice Barrett wrote in Vidal v. Elster, urging the Court to focus less on history and more on identifying “a generally applicable principle” (emphasis added). Or as she wrote near the end of that concurrence, “I see no reason to proceed based on pedigree rather than principle.”

For additional discussion of Rahimi, see this Notice and Comments post, including the comments, and yesterday’s Judicial Notice news roundup. For purposes of this column, suffice it to say that Rahimi reflects the ongoing disagreement between Justices Barrett and Thomas on the use of history, with Barrett voting with the majority and Thomas dissenting.

5. In her Vidal v. Elster concurrence, Barrett cited Kagan’s concurrence in the CFPB case prominently, for the proposition that “the longstanding practice of the political branches can reinforce our understanding of the Constitution’s original meaning.”

6. In her (very interesting) concurrence in Rahimi, Justice Barrett sounded critical notes about post-enactment history, explaining that “for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.”

She acknowledged that while post-enactment history “can be an important tool” in constitutional interpretation, its use “requires some justification other than originalism simpliciter.” Some possible justifications are the ones identified in her Vidal v. Elster opinion: post-ratification history “can ‘reinforce our understanding of the Constitution’s original meaning’; ‘liquidate ambiguous constitutional provisions’; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome.”