“I swear I have my own ideas.”
That’s how then-Judge Amy Coney Barrett responded during her 2020 confirmation hearing when asked by Sen. Chris Coons (D-Delaware) to what extent she would follow the precedents of the late Justice Antonin Scalia, for whom she clerked.
She echoed similar sentiments in response to written questions from the late Senator Dianne Feinstein (D-Calif.), reiterating that “if I am confirmed, it will be Judge Barrett, not Judge Scalia.”
As she completes her fourth term on the U.S. Supreme Court, Judge Barrett has made it abundantly clear that she has her own views, and she breaks with other conservatives when we disagree, particularly on the fascinating and important question of how to use history in interpreting the Constitution.
Don’t get me wrong, Barrett is a conservative and, like conservatives generally, believes that history has a role to play in the Constitution. She joined the majority opinions in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and denied a constitutional right to an abortion, and in New York State Rifle and Pistol Association v. Bruen, which ordered lower courts to review gun control laws to determine whether they are “consistent with the nation’s historical tradition of gun control,” a standard widely seen as favorable to gun rights.
But she has reservations about heavy reliance on history and tradition in interpreting the Constitution, an approach taken by Justices Samuel Alito in Dobbs and Clarence Thomas in Bruen and by lower court judges who have sought to follow those decisions. For example, in a separate concurring opinion in Bruen, she questioned the “permissible use of history” in interpreting the Constitution and warned against giving “more weight to history than it rightly bears.”
This isn’t the first time Barrett has expressed skepticism about the usefulness of history. Consider her concurring opinion in the 2021 case of Fulton v. City of Philadelphia over whether Catholic social services could refuse to certify foster parents to same-sex couples despite anti-discrimination laws: “History figures heavily in this debate, but on the question of whether the Founding Generation understood the First Amendment to require religious exemptions from generally applicable laws, at least in some circumstances, I believe the historical record is more silent than supportive.”
Last year, Justice Barrett took it a step further. In Samia v. United States, which asked whether the admission of a non-testifying co-defendant’s confession violated the Confrontation Clause, Justice Thomas wrote a decision finding that it did not, relying in part on historical practice, but Justice Barrett did not follow suit.
Although Justice Barrett agreed with the ultimate finding of no constitutional violation, she disagreed with the historical focus of Thomas’ decision, dismissing it as “irrelevant.” She concluded her separate concurring opinion: “While history is often important, and sometimes decisive, we must be careful in its use or risk weakening the most important historical arguments.”
And last week, Ms. Barrett relented: She was not afraid to strongly disagree with Mr. Thomas, even though she was a college sophomore when he joined the Supreme Court in 1991, making her nearly 30 years older than him.
In Vidal v. Elster, a trademark case over the constitutionality of the Lanham Act’s “names clause,” Justice Thomas upheld the clause over a First Amendment challenge, but relied heavily on history: there was no constitutional problem with denying an application to register “Trump Too Small” as a trademark on clothing products because “the tradition of restricting the trademarking of names coexists with the First Amendment.”
Justice Barrett again agreed with Justice Thomas’s final conclusion but steadfastly ignored his history lessons. In a concurring opinion with three liberal justices, Justice Barrett called Justice Thomas’ approach “doubly wrong.” She challenged the accuracy of Thomas’ historical analysis, but more importantly, she complained that the Court “never explained why searching for historical ancestors for each limitation is the correct way to analyze a constitutional question.”
Barrett advocated for a standard that focuses less on history and more on the purpose of trademark law and First Amendment precedent, under which restrictions on trademark registration are “permissible only if they are reasonable in light of the trademark system’s purpose of facilitating identification of origin.”
Both Thomas and Barrett are conservative fundamentalists, and their sharp differences of opinion have drawn attention over an issue important to fundamentalism: how to use history and tradition in constitutional analysis.
Some conservatives and fundamentalists have expressed concern about Barrett’s concurring opinion in Vidal v. Elster. University of San Diego professor Michael Ramsey, while agreeing with Barrett to some extent, suggested that her “rationality” approach was not based on the original meaning of the Constitution, the touchstone of fundamentalist analysis.
South Texas College of Law professor Josh Blackman also questioned Barrett’s approach, calling it a “means-ends balancing test, exactly the kind of test that Bruen rejected,” and that it was not based on principles. “Barrett criticizes the majority’s principles-based analysis, but she does not offer her own principles-based analysis.”
This methodological argument may seem unclear or puzzling to some. Why does it matter?
For better or worse, the Supreme Court and lower courts are increasingly turning to history to determine the meaning of the Constitution. Determining how and why history can be used in interpreting the Constitution will determine what rights we enjoy as Americans, how much power the government has over its people, etc. In fact, I expect to see two concrete examples emerge in the near future.
First, in United States v. Rahimi, the Court will decide whether banning people subject to domestic violence restraining orders from possessing firearms violates the Second Amendment. History and tradition are expected to play a large role.
Second, we will explore the historic debate over whether and to what extent former presidents enjoy presidential immunity from criminal prosecution as the Supreme Court rules in the case of Trump v. United States.
Arguments over history are not exclusive to the court’s conservative wing, and relying on history does not necessarily produce a conservative outcome. In Consumer Financial Protection Bureau v. Community Financial Services Association, Justice Thomas wrote the majority opinion rejecting a challenge to the CFPB’s funding mechanism, basing his decision in part on “the history of how the provision was enacted and the practice of Congress shortly after ratification.”
And in a notable concurring opinion, Justice Elena Kagan found further support for the majority’s conclusion by examining historical examples of funding structures Congress has used since enacting the appropriations provisions.
This reliance on legislative history and tradition has been controversial, especially on the right, and was even criticized by 11th Circuit Judge Kevin Newsom, a prominent conservative jurist, in a speech at Harvard Law School in February, but Judge Kagan’s concurring opinion in the CFPB was joined by other liberal justices, as well as, you guessed it, Judge Barrett.
It’s too early to say who will win this debate, but there’s no denying that Judge Barrett has her own ideas and is not afraid to voice them.
Lawyer-turned-author David Latt is the publisher of Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is the author of the novel Supreme Ambitions.
