The Media Is Seizing on SCOTUS 'In-fighting' Between Barrett, Thomas

Erin Schaff/The New York Times via AP, Pool

More than one news story today has focused on what appears to be a tense relationship between Supreme Court Justices Amy Coney Barrett and Clarence Thomas. 


Both POLITICO and CNN have stories out today focused on comments made by Barrett in a recent concurring opinion that leaves journalists thinking - or, perhaps, hoping - for a schism between the conservatives who make up the majority on the nation's highest court.

In a First Amendment case regarding a trademark and an insult about Trump's.... hands, the majority ruled that the California man who wanted to trademark "Trump Too Small" but was restricted from doing so was not being denied his First Amendment right to free speech.

The majority opinion, authored by Thomas, cited historical precedent in the opinion. But in a concurring opinion, Barrett disagreed with the approach, even though she felt the court ruled the correct way.

"The Court claims that 'history and tradition' settle the constitutionality of the names clause, rendering it unnecessary to adopt a standard for gauging whether a content-based trademark registration restriction abridges the right to free speech," she wrote. "That is wrong twice over."

“In my view, the Court’s laser-like focus on the history of this single restriction misses the forest for the trees,” she added. “I see no reason to proceed based on pedigree rather than principle.”


Journalists and scholars say this dissent-within-concurrence is indicative of a larger disagreement brewing between the two Justices. 

“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.

That could be the case, but the excitement with which this new narrative is being adopted by the media is perhaps a bit of wish-casting. The Court still has several opinions to release, including the major decision on former president Donald Trump's claim of immunity from prosecution, a claim he is making in the face of multiple criminal trials.

The journalists covering this new "rift" among the Court's conservatives seem giddy about the possibility that she could split up the conservative majority and prevent more rulings that the left opposes, such as the gun control case involving restricting gun access to those facing domestic violence restraining orders.


If the court adheres to a strict history-centric approach, as Thomas favors, it will likely strike down a federal law denying firearms to people under domestic violence restraining orders.

But Barrett recently foreshadowed that she is distancing herself from that approach. If she breaks with Thomas in the gun case, known as United States v. Rahimi, and if she can persuade at least one other conservative justice to join her, they could align with the court’s three liberals to uphold the gun control law.

It's unclear if the idea of "originalism" is suddenly under attack by Barrett. During her confirmation hearings, she was an avowed originalist - and blasted by the left for it. Now, though, they believe she is wavering on that, and it's providing them hope.

We just don't know if it's false hope, but they are aggressively pushing the narrative.



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