On a Supreme Court where the conservative supermajority increasingly leans on history as a guide, a dispute may be simmering over how many modern cases can be resolved by looking to the nation’s past.
Though Justice Clarence Thomas’ decision in a major trademark case last week was unanimous, it prompted a sharp debate led by Justice Amy Coney Barrett over the use of history to decide the case. Barrett, the newest conservative on the court, accused Thomas, the most senior associate justice, of a “laser-like focus on the history” that “misses the forest for the trees.
When Thomas issued his majority decision in Bruen two years ago, Barrett joined Thomas’ opinion in full. But she also penned a brief concurrence to highlight the “limits on the permissible use of history” in deciding cases. Among them, she said, was identifying the historical date needed to assess whether a restriction was constitutional.
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