The last of former President Donald Trump's three Supreme Court appointees appears be on collision course with far-right Justice Clarence Thomas — and it could have implications for some upcoming hot-button cases.
According to Politico, the conservative Barrett, whose history of involvement with religious extremists was a huge point of controversy when she was nominated for the court and whose vote was essential to overturning Roe v. Wade, fired a warning shot at her fellow GOP-backed judge in a trademark case involving anti-Trump T-shirts — concurring with his judgment, but tearing apart his reasoning.
"Barrett ... 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," wrote Josh Gerstein.
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"'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,” wrote Barrett.
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This matters, wrote Gerstein, because this sort of reasoning could split the justices on some key upcoming cases, like United States v. Rahimi, which asks whether there is constitutional precedent for restricting gun ownership from people under domestic violence restraining orders, and the upcoming case that could determine whether Trump has immunity from being prosecuted for trying to overthrow the presidential election.
"Thomas, famous for his intransigence, might not care about ... backlash, but the more pragmatically minded Barrett is surely aware of it," wrote Gerstein. "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."
