“I assure you, I have my own mind.” This resolute stance was articulated by then-Judge Amy Coney Barrett during her 2020 confirmation hearings, asserting her judicial independence from the late Justice Antonin Scalia, for whom she had clerked. At her confirmation, Barrett also conveyed to the late Sen. Dianne Feinstein (D-Calif.) in written questions that “if I am confirmed, you would be getting Justice Barrett, not Justice Scalia.”
As she completes her fourth term on the U.S. Supreme Court, Justice Barrett’s jurisprudence underscores this independence, particularly through her nuanced approach to the use of history in constitutional interpretation, sometimes diverging from fellow conservative colleagues.
Barrett, while a staunch conservative, has shown a willingness to deviate from the reliance on historical precedent that forms a cornerstone of judicial philosophy espoused by Justices like Samuel Alito and Clarence Thomas. For instance, in her concurrence in New York State Rifle & Pistol Association v. Bruen, she raised concerns about “the permissible use of history” and cautioned against assigning it “more weight than it can rightly bear.”
This skepticism was also evident in her concurrence in Fulton v. City of Philadelphia, where she remarked on the ambiguous historical record regarding First Amendment religious exemptions from generally applicable laws.
Recently, in Vidal v. Elster, a trademark-law case, Barrett’s divergence from Justice Thomas was marked. While Thomas leaned heavily on historical traditions to uphold the names clause of the Lanham Act against a First Amendment challenge, Barrett—agreeing with the outcome but not the historical reasoning—advocated a contemporary analysis focused on trademark law’s purposes and First Amendment precedent. This approach emphasizes that restrictions are permissible if they are reasonable in light of the trademark system’s purpose of facilitating source identification.
Barrett’s methodological stance has sparked a dialogue among originalists. Professor Michael Ramsey of the University of San Diego acknowledged some agreement with Barrett but questioned whether her “reasonableness” approach aligns with originalist principles. Similarly, Professor Josh Blackman of South Texas College of Law criticized Barrett’s approach as reminiscent of the means-ends balancing test rejected in Bruen, arguing that she offered no originalist analysis.
The importance of this debate is underscored as courts turn increasingly to history in constitutional interpretation. The upcoming cases of United States v. Rahimi on Second Amendment rights and Trump v. United States on presidential immunity from criminal prosecution will likely see historical arguments front and center.
Notably, the debate about historical reliance extends beyond the conservative wing. In Consumer Financial Protection Bureau v. Community Financial Services Association, Justice Elena Kagan, along with the liberal justices and Barrett, utilized post-enactment historical examples to support the CFPB’s funding mechanism—an approach criticized by conservative jurist Judge Kevin Newsom.
This ongoing debate over how to interpret the Constitution through historical contexts will significantly influence American rights and governmental powers. Justice Barrett’s articulation of her perspective signifies a judicial independence that fuels this significant conversation. For more information on this topic, refer to David Lat’s detailed analysis.