Time will tell but there are some signs that she might not be quite as nuts as the other nuts.
We are probably stuck with this 6 vote lunatic Supreme Court majority for some time so it’s more important than ever to keep our eyes on the potentially small changes that might be relevant, whether it’s signs of concern about politics playing a role or actual disagreement among the majority about their judicial philosophies.
This article in Politico suggests that there might be a developing schism on the right that could prove to be at least a little bit helpful depending on who joins what side:
A rift is emerging among the Supreme Court’s conservatives — and it could thwart the court’s recent march to expand gun rights.
On one side is the court’s oldest and most conservative justice, Clarence Thomas. On the other is its youngest member, Amy Coney Barrett.
The question at the center of the spat may seem abstract: How should the court use “history and tradition” to decide modern-day legal issues? But the answer may determine how the court resolves some of the biggest cases set to be released in the coming days, particularly its latest foray into the Second Amendment right to bear arms.
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.
That outcome would avoid the certain political backlash that would result from a high court declaration that alleged domestic abusers have a constitutional right to carry a gun. Thomas, famous for his intransigence, might not care about such backlash, but the more pragmatically minded Barrett is surely aware of it.
“It does seem to me that there’s a fight going on, and Rahimi played an important role in provoking it,” said Reva Siegel, a professor at Yale Law School who is an expert on legal history.
This fight is breaking down to Thomas, Alito and Gorsuch vs Barret while Roberts and Kavanaugh are being “cagey.”
Apparently the divide shows itself in that weird trademark case last week ov =er a t-shirt that said “Trump so small.”
Despite the trivial subject matter, Barrett squared off with Thomas in such a confrontational manner that they seemed to be really fighting about something else.
“I don’t think this is about T-shirts at all,” Tyler said.
Thomas wrote the majority opinion rejecting the trademark applicant’s claim. Barrett (and all the other justices) agreed with that bottom-line result. The quarrel came down to methodology.
In a concurring opinion, Barrett used unusually blunt terms to skewer Thomas’ history-based rationale for denying the trademark. She described his approach as “wrong twice over,” and she made clear that her gripes went far beyond this case alone.
“I feel like this is a really stark break,” said Sarah Isgur, a former Justice Department spokesperson during the Trump administration who’s now a prominent Supreme Court analyst.
Barrett complained in her 15-page concurrence that her conservative colleagues have become so enamored of history that they’re now employing it even when the record is ambiguous and the purpose of embracing a retrospective approach is unclear.
“The views of preceding generations can persuade, and, in the realm of stare decisis, even bind,” Barrett wrote, using the Latin term for the principle that courts should adhere to past rulings. “But tradition is not an end in itself — and I fear that the Court uses it that way here.”
Barrett, a Trump appointee, added what could be interpreted as a jab at the very premise of originalism, which has been a hallmark of the conservative legal movement for decades.
“It presents tradition itself as the constitutional argument. … Yet what is the theoretical justification for using tradition that way?” she wrote.
Barrett’s next critique amounts to fighting words among legal conservatives: She compared Thomas’ approach to the kind of amorphous, multi-pronged legal tests that conservatives frequently accuse liberal judges of concocting.
“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,” she asserted.
Oh baby. That’s quite a diss.
Barret used to be all-in on “originalism” but she seems to have changed her mind. (It would have been nice if she could have done that before Dobbs…)
Barrett joined both those opinions in their entirety, but now she’s sending an unmistakable signal that there are limits to the utility of history in resolving today’s hard constitutional questions.
She’s hardly alone in voicing skepticism. The court’s use of history in Dobbs and Bruen set off a furious debate among legal scholars, historians and judicial gatherings about whether the justices got the history right — and about the overall wisdom of the effort. Even Saturday Night Live weighed in on the shortcomings of turning to the 17th and 18th centuries to resolve 21st century disputes over issues like abortion.
In her concurrence in the trademark case, Barrett joined in some of those critiques, accusing her fellow conservatives of taking too narrow a view of what sort of past regulation qualifies as relevant enough to justify a government practice in the present.
“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.”
Huh. So citing 16th century inquisitors isn’t such a great way to judge law in the 21st century? Who knew?
[…]
Last week’s trademark case wasn’t the first time Barrett has unfurled the yellow caution flag as the court turned to history to resolve a case. Almost a year ago, in a case involving the admissibility of confessions by co-conspirators, Barrett again accused Thomas of making too much of a very limited historical record.
“The Court overclaims. That is unfortunate,” Barrett wrote in a solo concurrence, referring to Thomas’ majority opinion. “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,” she declared.
And in a speech last year at Catholic University, Barrett reiterated the point. “We have to be very, very careful in the way that we use history,” she said, adding that deploying historical evidence to advance a legal conclusion can be like “looking over a crowd and picking out your friends.”
No kidding.
“It does seem to me that Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see ‘history and tradition’ moving in the future,” said Catholic University law professor Jennifer Mascott, who clerked for Thomas at the Supreme Court and Kavanaugh when he was an appeals court judge. “Justice Barrett is basically raising questions that could really shift and perhaps limit the impact of the way specific [historical] examples are used.”
Barrett’s step away from hard-core originalism comes in the wake of Trump giving a less-than-stellar review to his three Supreme Court nominees: Gorsuch, Kavanaugh and Barrett. It has contributed to grumbling from some conservatives that she isn’t proving to be as doctrinaire across the board as they’d have liked.
“You see justices after three or more years on the court coming into their own,” said Adam Feldman, founder of Empirical SCOTUS, a blog that publishes statistical analysis of the Supreme Court. “She’s developing a jurisprudence at this point that isn’t extremely parallel to any other justice’s. I’ve heard from a fair number of conservatives right now who are not thrilled with any of the Trump picks, that they’re not Alito or Thomas, and Barrett has been kind of soft on some of these issues.”
You just can’t count on a woman, amirite?
But what about Roberts and Kavanaugh?
So far, those two justices have not publicly revealed where they stand in the current dispute. Notably, in the trademark case, they did not sign onto Barrett’s concurrence — but they also did not sign the portion of Thomas’ opinion that most directly responded to Barrett’s critiques.
Instead, they issued a terse, one-paragraph opinion that said Barrett “might well” be right, but the question she raised could be left for another case and another day.
Isgur, the former DOJ spokesperson turned Supreme Court analyst, said she reads the opinions to suggest that Roberts and Kavanaugh are closer to Barrett’s view on the utility of history than they are to the strict originalism of Thomas and Alito.
Isgur argues that the court is really a 3-3-3 split rather than a 6-3 split which just means the center of the court is now what we used to call the right and the right is what can only be called batshit crazy.
There also may be another split emerging:
Though Roberts and Kavanaugh did not join Barrett’s concurrence, the court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — each signed on to all or parts of it. (Kagan, the court’s leading dealmaker on the left, endorsed Barrett’s opinion in its entirety.)
It also appears to be the first opinion ever issued by the court in which four female justices all joined an opinion without any male justice also signing on. (The court never had as many as four women justices until Jackson, a nominee of President Joe Biden, was confirmed in 2022.)
That gender divide may be another clue that Barrett’s opinion presages her joining with the court’s liberals in the pending case about denying guns to domestic abusers.
“Rahimi is, in part, about gender,” Tyler said. “It’s about domestic violence.”
Keep in mind that if Trump wins Thomas and Alito are almost certainly planning to retire so he can replace them with two more batshit crazy young MAGA acolytes. I seriously doubt it will be a woman. They clearly aren’t reliable.
Barret is very, very conservative. I have no idea if any of this will make much of a difference. After all, even if she votes with the liberal justices it takes one more and you really can’t count on Roberts and Kavanaugh. But it’s nice to see someone on the righty fighting back even a little.