The Supreme Court’s approach on ‘history and tradition’ is irking Amy Coney Barrett

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.

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.” The back-and-forth could signal a recalibration by some members of the court of how and when to apply originalism, the dominant legal doctrine among the court’s conservatives that demands the Constitution be interpreted based on its original meaning. Even a slight change could have enormous consequences for the court’s blockbuster cases, including a pending case that is likely to focus heavily on history to decide whether Americans who are the subject of domestic violence retraining orders can be barred from owning guns. “Barrett’s critique of originalism definitely signals what seems to be a growing rift among the originalists on the court about the proper way to use history,” said Tom Wolf, a constitutional law expert with the liberal-leaning Brennan Center for Justice at New York University’s law school.