Even though the Supreme Court of the United States (SCOTUS) has a six-member conservative majority, that majority appears to be fracturing in a significant way.
According to a recent Politico report, a philosophical debate has been "raging" between two different blocs of SCOTUS conservatives. One bloc includes Justices Samuel Alito, Neil Gorsuch and Clarence Thomas, with the other bloc consisting of Justices Amy Coney Barrett, Brett Kavanaugh and Chief Justice John Roberts (though Politico clarified that Kavanaugh and Roberts have been more "cagey" than Barrett in where they stand).
The fracture appears to stem from a case the Court decided last week — Vidal v. Elster — concerning U.S. trademark law in a case that involves the maker of t-shirts featuring the phrase "Trump Too Small." Justice Thomas wrote the majority opinion, which was shared at least in part by all other justices. But as College of William & Mary Law School professor Laura Heymann wrote for Bloomberg Law, the case exposed a "potential rift" among the majority — including one part of the decision where Barrett sided with the Court's liberal minority.
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"[T]he various opinions in Vidal v. Elster turned out to be less about trademark law and more about the justices’ diverging approaches to First Amendment analysis," Heymann wrote. "Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor agreed that the names clause was constitutional but pushed back strongly on the majority’s history tourism, advancing instead a framework focused on trademark law’s purpose."
And according to Politico legal correspondent Josh Gerstein, Barrett unleashed on Thomas' legal expertise in her own concurring opinion. He quoted University of California-Berkeley law professor, who said the current debate "raging" among the majority goes beyond just the Vidal v. Elster case.
“I don’t think this is about T-shirts at all,” she said.
"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," Gerstein wrote. "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."
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Former Trump administration official Sarah Isgur — who is now a Supreme Court analyst — told Politico that the infighting between Barrett and Thomas showed "a really stark break" between the two conservative jurists. She opined that the source of the rift was about the rigid adherence to the doctrine of originalism versus a more modern view of interpreting the Constitution. To bolster that argument, she pointed to a separate opinion in Vidal v. Elster by Kavanaugh and Roberts.
"The Kavanaugh/Roberts opinion is really just a shorter version of what [Barrett] wrote," Isgur said.
This fracture could become more apparent in this week's pending decisions, which may include rulings on both former President Donald Trump's claim of absolute immunity from criminal prosecution, and a case brought by a January 6 rioter challenging the legality of a charge he shares with Trump (Fischer, Joseph W. v. United States). If the Court rules in favor of the plaintiff in that case, it could strike two of Department of Justice special counsel Jack Smith's four felony counts in his initial indictment of Trump in the D.C. election interference case.
Click here to read Politico's full report. And click here to read Bloomberg Law's reporting (subscription required).
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