Justice Barrett’s Concurrence In Vidal v. Elster Is a Repudiation of Bruen’s “Tradition” Test.
Of the three Trump appointees, Justice Barrett was the biggest wildcard. With Justices Gorsuch and Kavanaugh, what you saw is what we got. Very little that they’ve done so far has surprised me. Justice Gorsuch’s approaches to LGBT rights and Indian law were evident in his lower-court record. And Justice Kavanaugh’s restraint and compassionate conservatism—truly the hallmarks of the George W. Bush presidency—were on display in the Obamacare litigation and other cases. Again no surprises. But Justice Barrett had limited experience on the bench, wrote little as an academic, and never took any position on controversial matters of concern. She wasn’t quite a blank slate, but she was as close to it as fathomable for a Republican Supreme Court appointment.
I get the genuine sense that Justice Barrett is figuring things out as she goes along. Each of her opinions seems like a new day. Brilliant as Barrett is—and I think she is extremely intelligent—she is learning on the job. With that development, I think she has come to regret some of her decisions in short order. For example, I think she backed off her vote in Roman Catholic Diocese after incessant “shadow docket” criticism, as evident in Does v. Mills. I also think she felt compelled to reimagine the major questions doctrine as some sort of semantic/textualist cannon following criticism of the Gorsuchian substantive cannon. I wouldn’t be surprised if she develops doubts about the presidential removal power, though parting company with Justice Scalia’s Morrison dissent may be too much to bear.
More pressingly, I think Justice Barrett is already having second thoughts about the text, history, and tradition framework in Bruen. She couldn’t even join Justice Thomas’s landmark opinion without reservations. We know she wrote a concurrence in Bruen that questioned whether the relevant timeframe was 1791 or 1868. Fair enough. But I thought her concurrence went further. She seemed to be casting some doubt on Justice Thomas’s majority opinion, and the entire enterprise of looking at historical analogues. It is no surprise that Justice Breyer’s Bruen dissent favorably cited Barrett’s concurrence. More recently, in the CFPB case, Justice Barrett put more distance between herself and Justice Thomas by joining Justice Kagan’s concurrence, which fixated on liquidation and post-enactment practice.
Justice Barrett doubled-down on her disagreement with Justice Thomas in Vidal v. Elster. This case tells us far more about the Court’s originalist jurisprudence than it does about trademark law. I can’t remember ever seeing a unanimous decision with such a fractured lineup. To paraphrase the T-Shirt, Thomas’s majority was too small.
The distance between Justice Thomas and Justice Barrett is not huge. In an alternate world, Chief Justice Roberts assigned this case to Justice Barrett or Justice Sotomayor, and there would have been a clean major
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