Amy Coney Barrett may be poised to split conservatives on the Supreme Court

Amy Coney Barrett may be poised to split conservatives on the Supreme Court

Politico reports:

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.

The dispute over the historical approach — part of a legal philosophy known as originalism — also could have implications for Donald Trump’s pending bid to have the high court declare him immune from prosecution for attempting to subvert the 2020 election. The potential outcomes in that case, though, are less clear than in the gun case.

For the moment, the battle lines in this civil war among the court’s six conservatives remain somewhat murky. Justices Samuel Alito and Neil Gorsuch seem to be squarely in Thomas’ camp, while Chief Justice John Roberts and Justice Brett Kavanaugh are being cagey about where they stand.

“There is a very ongoing, current debate raging among the justices about how to interpret the Constitution across a range of cases and whether they need to adopt the same approach in all cases,” said University of California Berkeley law professor Amanda Tyler.

The divide became evident last week as the court ruled on what was expected to be an amusing but not terribly significant case over a trademark application for crude anti-Trump T-shirts.

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. [Continue reading…]

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