Justice Amy Coney Barrett Challenges Justice Clarence Thomas on the Use of History in Supreme Court Decisions

Washington D.C., District of Columbia United States of America
Barrett's critique came to light in a trademark case where she accused Thomas of focusing too much on history and missing the bigger picture.
Both justices are known for their commitment to originalism, but differ in their interpretations of how to apply this approach.
Justice Amy Coney Barrett challenges Justice Clarence Thomas's historical approach in Supreme Court decisions.
Justice Amy Coney Barrett Challenges Justice Clarence Thomas on the Use of History in Supreme Court Decisions

In recent Supreme Court decisions, Justice Amy Coney Barrett has shown a willingness to challenge the historical approach of her colleague, Justice Clarence Thomas. This shift could signal a potential rift among originalists on the court regarding the proper use of history in decision-making.

Barrett's critique came to light in a trademark case where she accused Thomas of focusing too much on history and missing the bigger picture. In her dissenting opinion, Barrett argued for a generally applicable principle instead of relying solely on historical evidence.

The disagreement between Barrett and Thomas is significant because both justices are known for their commitment to originalism, a legal philosophy that emphasizes interpreting the Constitution based on its original meaning. However, their differing interpretations of how to apply this approach could lead to varying outcomes in cases before the court.

The debate over history and tradition in constitutional law is not new. The Supreme Court has long grappled with how much weight to give historical evidence when interpreting the Constitution. Some justices argue that a strict adherence to historical precedent is necessary, while others believe that a more flexible approach is required.

Barrett's stance on this issue could have implications for future cases before the court. Her willingness to call out other originalists when their historical evidence is weak and unwilling to let it be the exclusive means of interpreting the Constitution may lead to more diverse opinions and a more nuanced approach to constitutional interpretation.

Despite these developments, it remains unclear how this disagreement will play out in future cases. The Supreme Court's conservative supermajority continues to lean on history as a guide, but the debate over how much weight to give historical evidence could lead to interesting and potentially divisive decisions.


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Confidence

90%

Doubts
  • Are there any non-peer reviewed studies or unverified sources used in the article?

Sources

77%

The overall score is a weighted number that takes into account conflict of interest, bias, deception and other practices that undermine the credibility of the source. It is calculated as:
(Site Conflicts Of Interest + Author Conflicts Of Interest) / 2.0 * 0.2 + ArticleBiasScore * 0.20 + UniquePointsScore * 0.05 + DeceptionScore * 0.20 + ReadabilityScore * 0.05 + FallacyScore * 0.20

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

CNN News Site: In-Depth Reporting and Analysis with Some Financial Conflicts and Sensational Language Devan Cole, Wednesday, 19 June 2024 14:01
  • Unique Points
    • Justice Amy Coney Barrett accused Justice Clarence Thomas of focusing too much on history, which she believes misses the bigger picture.
    • Barrett's critique signals a potential rift among originalists on the court regarding the proper use of history in decision-making.
    • A split emerged among the justices regarding the funding for the Consumer Financial Protection Bureau, with some arguing that modern history should be considered alongside pre-colonial English history.
  • Accuracy
    • The Supreme Court increasingly relies on a conservative supermajority that uses history as a guide.
  • Deception (30%)
    The article contains selective reporting and editorializing by the authors. They focus on the disagreement between Justices Thomas and Barrett over the use of history in constitutional interpretation, implying that this is a significant rift among conservative justices. However, they fail to mention that three liberal justices also signed onto parts of Barrett's opinion or that Kagan proposed a more nuanced approach to using history. This selective reporting creates an incomplete and potentially misleading picture of the situation.
    • 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.
    • When Thomas issued his majority decision in Bruen two years ago, Barrett joined Thomas’ opinion in full. But she also penned a brief concurrence to highlight the 'Limits on the permissible use of history' in deciding cases.
    • The debate playing out this term may be a recognition from some on the court that history is often messy and nuanced in a way that doesn’t always yield easy answers.
  • Fallacies (85%)
    The authors use inflammatory rhetoric by describing Justice Thomas' focus on history as 'laser-like' and Barrett's critique as a 'growing rift.' They also make an appeal to authority by quoting constitutional law experts. However, they do not directly attribute any fallacies to the authors themselves.
    • ][Tom Wolf], a constitutional law expert with the liberal-leaning Brennan Center for Justice at New York University's law school[[,]] [[Elizabeth Wydra]], president of the progressive Constitutional Accountability Center[[]]
  • Bias (80%)
    The authors use the term 'history and tradition' multiple times to describe the Supreme Court's approach to interpreting the Constitution. While they do not explicitly express a bias towards this approach, their repeated use of this phrase could be seen as an endorsement or normalization of it. This could potentially skew readers towards accepting this method without question.
    • ]The court's laser-like focus on the history of this single restriction misses the forest for the trees[
      • Thomas dived deeply into pre-colonial English history and found that parliament...did not micromanage every aspect of the king's finances.
        • We see no evidence that the common law afforded protection to a person seeking a trademark of another living person's name.
        • Site Conflicts Of Interest (100%)
          None Found At Time Of Publication
        • Author Conflicts Of Interest (100%)
          None Found At Time Of Publication

        79%

        The overall score is a weighted number that takes into account conflict of interest, bias, deception and other practices that undermine the credibility of the source. It is calculated as:
        (Site Conflicts Of Interest + Author Conflicts Of Interest) / 2.0 * 0.2 + ArticleBiasScore * 0.20 + UniquePointsScore * 0.05 + DeceptionScore * 0.20 + ReadabilityScore * 0.05 + FallacyScore * 0.20

        A score that takes into consideration the content for flow, interruptions with ads, and overt search engine optimization techniques that makes the content hard to understand

        Amy Coney Barrett may be poised to split conservatives on the Supreme Court

        Politico News Site Name: POLITICO Full Legal Name of News Site: Politico LLC Location of News Site: Washington D.C., USA Wednesday, 19 June 2024 00:00
        • Unique Points
          • Amy Coney Barrett may be poised to split conservatives on the Supreme Court.
          • Barrett’s change of heart has notable implications as just two years ago, she appeared to be fully on board with the originalist approach that Thomas has long championed.
          • In her concurrence in the trademark case, Barrett joined in some of those critiques, accusing her fellow conservatives of taking too narrow a view of what sort of past regulation qualifies as relevant enough to justify a government practice in the present.
          • A less demanding, more flexible historical test could lead the justices to uphold the gun restriction aimed at domestic abusers even in the absence of clear analogs from the founding era.
          • Barrett’s step away from hard-core originalism comes in the wake of Trump giving a less-than-stellar review to his three Supreme Court nominees: Gorsuch, Kavanaugh and Barrett.
          • Whether Barrett can succeed in pumping the brakes on the court’s use of history likely will depend on two other conservative justices: Roberts and Kavanaugh.
        • Accuracy
          • Barrett's change of heart has notable implications as just two years ago, she appeared to be fully on board with the originalist approach that Thomas has long championed.
        • Deception (45%)
          The article discusses how Justice Amy Coney Barrett may be causing a rift among conservatives on the Supreme Court due to her critiques of originalism and the use of tradition as a constitutional argument. The author highlights that Barrett's views differ from those of other conservative justices, such as Thomas and Alito, which could lead to a shift in the court's approach to using history in resolving constitutional questions. This makes the article somewhat deceptive, as it presents conflicting opinions within the conservative camp without clearly disclosing that they are from different justices.
          • In my view, the Court’s laser-like focus on the history of this single restriction misses the forest for the trees...
          • Barrett, a Trump appointee, added what could be interpreted as a jab at the very premise of originalism...
          • The disagreement over history is notable because, just two years ago, Barrett appeared to be fully on board with the originalist approach that Thomas has long championed...
          • The impact of the Barrett-Thomas quarrel on Trump’s presidential immunity claim... is harder to predict.
        • Fallacies (85%)
          The author makes several arguments that contain informal fallacies. The author uses loaded language and appeals to emotion when describing the disagreement between Barrett and Thomas as 'fighting words among legal conservatives' and 'unmistakable signal'. These statements are not objective descriptions of the situation, but rather attempts to elicit an emotional response from the reader. Additionally, the author uses a dichotomous depiction when describing Barrett's change of heart as a 'step away from hard-core originalism'. This statement oversimplifies the complexity of Barrett's position and presents it as a binary choice between 'hard-core originalism' and something else. Lastly, the author engages in an appeal to authority when quoting legal scholars, historians, and judicial gatherings criticizing the court's use of history in Dobbs and Bruen. While these sources may have expertise in their respective fields, their opinions do not automatically make them correct or authoritative on the matter at hand.
          • The disagreement over history is notable because, just two years ago, Barrett appeared to be fully on board with the originalist approach that Thomas has long championed.
          • Barrett's next critique amounts to fighting words among legal conservatives:
          • It does seem to me that Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see ‘history and tradition’ moving in the future.
          • You see justices after three or more years on the court coming into their own.
          • She’s developing a jurisprudence at this point that isn’t extremely parallel to any other justice’s.
        • Bias (80%)
          The author of this article does not demonstrate any clear bias towards a specific political ideology or position in the provided text. However, the author does present criticism towards Justice Amy Coney Barrett's approach to using history and tradition as justification for constitutional decisions. The author also mentions that some conservatives are not thrilled with her performance on the court and that she has been described as 'soft' on certain issues. These statements do not necessarily indicate bias, but they could be perceived as critical towards Barrett and her judicial philosophy.
          • ]Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see ‘history and tradition’ moving in the future.[
            • Some conservatives are not thrilled with any of the Trump picks, that they’re not Alito or Thomas, and Barrett has been kind of soft on some of these issues.[
            • Site Conflicts Of Interest (100%)
              None Found At Time Of Publication
            • Author Conflicts Of Interest (0%)
              None Found At Time Of Publication

            73%

            The overall score is a weighted number that takes into account conflict of interest, bias, deception and other practices that undermine the credibility of the source. It is calculated as:
            (Site Conflicts Of Interest + Author Conflicts Of Interest) / 2.0 * 0.2 + ArticleBiasScore * 0.20 + UniquePointsScore * 0.05 + DeceptionScore * 0.20 + ReadabilityScore * 0.05 + FallacyScore * 0.20

            A score that takes into consideration the content for flow, interruptions with ads, and overt search engine optimization techniques that makes the content hard to understand

            Amy Coney Barrett Breaks With Supreme Court Originalists

            //.biases are used in The R One biases of An Outside N One Escape. Matt Ford Wednesday, 19 June 2024 00:00
            • Unique Points
              • Amy Coney Barrett made a dissenting opinion in the case Vidal v. Elster regarding trademark law.
              • Amy Cony Barrett rejected Clarence Thomas' approach and preferred a generally applicable principle.
              • Amy Coney Barrett is increasingly willing to call out other originalists when their historical evidence is weak and unwilling to let it be the exclusive means of interpreting the Constitution.
            • Accuracy
              • Justice Amy Coney Barrett made a dissenting opinion in the case Vidal v. Elster regarding trademark law.
              • , Justice Amy Coney Barrett accused Justice Clarence Thomas of focusing too much on history, which she believes misses the bigger picture.
            • Deception (80%)
              Matt Ford's article 'Amy Cony Barrett Breaks With Supreme Court Originalists' contains editorializing and selective reporting. The author expresses his opinion that Justice Amy Coney Barrett is 'increasingly willing to call out other originalists when their evidence of a historical tradition is weak.' This statement is an example of editorializing as it goes beyond the facts presented in the article and expresses the author's personal viewpoint. Additionally, Ford selectively reports on certain aspects of the case, focusing on Justice Barrett's rejection of Justice Thomas' reasoning and her approach to constitutional interpretation. He fails to mention that Barrett did not entirely reject originalism but rather expressed a preference for adopting a 'generally applicable principle.' This omission is an example of selective reporting as it presents only one side of the story, giving readers an incomplete understanding of the situation.
              • Matt Ford expresses his opinion that Justice Amy Coney Barrett is 'increasingly willing to call out other originalists when their evidence of a historical tradition is weak.'
              • The author selectively reports on certain aspects of the case, focusing on Justice Barrett's rejection of Justice Thomas' reasoning and her approach to constitutional interpretation, without mentioning that she did not entirely reject originalism but rather expressed a preference for adopting a 'generally applicable principle.'
            • Fallacies (95%)
              The author makes an appeal to authority by referencing the historical tradition of restricting unauthorized trademarks of other people's names and quoting Justice Clarence Thomas' reasoning. However, the author also points out that relying solely on history and tradition is a judge-made test, which is a contradiction. This inconsistency in reasoning reduces the score.
              • Justice Clarence Thomas took what seemed like a classically originalist path: He surveyed centuries of historical evidence in the English and American legal systems, concluded that there was a strong historical tradition of restricting unauthorized trademarks of other people’s names, and ruled that the First Amendment allowed it.
              • But a rule rendering tradition dispositive is itself a judge-made test. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.
            • Bias (0%)
              The author demonstrates ideological bias by highlighting the difference in legal theory between Justice Amy Coney Barrett and Justice Clarence Thomas. The author frames this difference as a significant one in legal theory, suggesting that Barrett's approach is more nuanced and less reliant on historical tradition than Thomas's. This framing implies a preference for Barrett's method over the originalist approach favored by other conservative justices.
              • ]Justice Clarence Thomas took what seemed like a classically originalist path: He surveyed centuries of historical evidence in the English and American legal systems, concluded that there was a strong historical tradition of restricting unauthorized trademarks of other people's names, and ruled that the First Amendment allowed it. Barrett rejected Thomas's reasoning outright.
              • Site Conflicts Of Interest (100%)
                None Found At Time Of Publication
              • Author Conflicts Of Interest (100%)
                None Found At Time Of Publication

              77%

              The overall score is a weighted number that takes into account conflict of interest, bias, deception and other practices that undermine the credibility of the source. It is calculated as:
              (Site Conflicts Of Interest + Author Conflicts Of Interest) / 2.0 * 0.2 + ArticleBiasScore * 0.20 + UniquePointsScore * 0.05 + DeceptionScore * 0.20 + ReadabilityScore * 0.05 + FallacyScore * 0.20

              A score that takes into consideration the content for flow, interruptions with ads, and overt search engine optimization techniques that makes the content hard to understand

              Amy Coney Barrett Sounds Fed Up With Clarence Thomas’ Sloppy Originalism

              Slate Mark Joseph Monday, 17 June 2024 21:35
              • Unique Points
                • Justice Amy Coney Barrett disagreed with Justice Clarence Thomas’ approach to constitutional analysis in a recent Supreme Court case.
                • Barrett criticized Thomas’ approach, arguing that it was both historically inaccurate and insufficient as a constitutional argument.
              • Accuracy
                • Thomas relied solely on history to justify upholding the statute that bars trademarks made up of living individuals’ names without their consent.
              • Deception (30%)
                The article contains selective reporting and editorializing by the author. The author quotes Justice Thomas extensively and then criticizes his approach to constitutional analysis, implying that it is flawed. However, the author fails to provide any counter-evidence or alternative perspective from other justices or legal scholars. This creates a biased narrative that misrepresents the complexity of the issue at hand. The author also uses emotional language such as 'sloppy originalism' and 'radical and unworkable' to manipulate readers' emotions and sway their opinion.
                • His history-only approach, she wrote, was ‘wrong twice over': Thomas both botched the relevant history and failed to make a persuasive case for its use in the first place.
                • What's remarkable is who seized on this squabble over intellectual property to launch a scathing salvo against the conservative majority’s ‘Claser-like focus’ on ‘supposed history and tradition’: Justice Amy Coney Barrett, a conservative who presented as a true believer in originalism when joining the Supreme Court four years ago.
                • The best way to support our work is by joining Slate Plus.
              • Fallacies (85%)
                The author uses inflammatory rhetoric by describing Thomas's approach as 'sloppy originalism' and 'bogus originalism'. This is an appeal to emotion and a way to discredit Thomas without providing any logical argument against his position.
                • ][author] The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!) [[//] [
              • Bias (80%)
                The author expresses disenchantment with Clarence Thomas's approach to originalism and criticizes his reliance on history alone as a justification for constitutional analysis. The author also accuses Thomas of selectively using historical anecdotes and failing to provide theoretical justification for his approach.
                • His history-only approach, she wrote, is wrong twice over: Thomas both botched the relevant history and failed to make a persuasive case for its use in the first place.
                  • Plucking out historical anecdotes, ad libbing some connective tissue, then presenting the result as a constitutional principle misses the forest for the trees.
                  • Site Conflicts Of Interest (100%)
                    None Found At Time Of Publication
                  • Author Conflicts Of Interest (100%)
                    None Found At Time Of Publication

                  77%

                  The overall score is a weighted number that takes into account conflict of interest, bias, deception and other practices that undermine the credibility of the source. It is calculated as:
                  (Site Conflicts Of Interest + Author Conflicts Of Interest) / 2.0 * 0.2 + ArticleBiasScore * 0.20 + UniquePointsScore * 0.05 + DeceptionScore * 0.20 + ReadabilityScore * 0.05 + FallacyScore * 0.20

                  A score that takes into consideration the content for flow, interruptions with ads, and overt search engine optimization techniques that makes the content hard to understand

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

                  KTVZ NewsChannel 21 CNN Newsource Wednesday, 19 June 2024 14:01
                  • Unique Points
                    • Justice Amy Coney Barrett criticized Justice Clarence Thomas for focusing too much on history in a Supreme Court case.
                    • Justice Barrett accused Thomas of missing the forest for the trees with his laser-like focus on history.
                    • Amy Coney Barrett is increasingly willing to call out other originalists when their historical evidence is weak and unwilling to let it be the exclusive means of interpreting the Constitution.
                  • Accuracy
                    • The dispute between Justices Thomas and Barrett could lead to a recalibration of how the court uses originalism, the dominant legal doctrine among conservatives.
                  • Deception (30%)
                    The article contains selective reporting and editorializing. The author quotes experts to support their argument that there is a dispute among the justices over how to apply originalism in constitutional adjudication. However, they only quote the liberal-leaning Brennan Center for Justice expert who supports the idea of an alternative approach to history that may draw a majority on the court. They do not provide any quotes or mention any experts who hold opposing views. This selective reporting creates a biased narrative and misrepresents the complexity of the issue. Additionally, there are instances of editorializing in phrases such as 'even a slight change could have enormous consequences for the court's blockbuster cases.' These statements are not factual and add unnecessary emotion to the article.
                    • It's much more complicated than that – history is much more contested than that.
                    • The debate playing out this term may be a recognition from some on the court that history is often messy and nuanced in a way that doesn’t always yield easy answers.
                    • What we could be seeing is a more nuanced approach to using that history.
                  • Fallacies (85%)
                    The article contains an appeal to authority fallacy when it quotes constitutional law experts stating their opinions on the potential formation of alternative approaches to history among the justices. The article also contains inflammatory rhetoric with phrases such as 'growing rift,' 'recalibration,' and 'recognition from some on the court that history is often messy and nuanced in a way that doesn’t always yield easy answers.' However, these phrases do not directly relate to any fallacies found in the author's assertions.
                    • ]A lewd trademark gets historic treatment[
                    • What we could be seeing is a more nuanced approach to using that history[
                    • It's much more complicated than that -- history is much more contested than that[
                    • The majority attempts to reassure litigants and the lower courts that a 'history-focused approach' here is sensible and workable, by citing Bruen[
                    • We see no evidence that the common law afforded protection to a person seeking a trademark of another living person’s name. To the contrary, English courts recognized that selling a product under another person’s name could be actionable fraud[
                  • Bias (80%)
                    The author expresses a displeasure with the use of history to decide cases and accuses other justices of a 'laser-like focus on the history' that 'misses the forest for the trees'. This language implies a bias towards dismissing the importance of historical context in legal decision making.
                    • Barrett, who endorsed the court’s conclusion that a provision of federal trademark law barring the registration of an individual’s name without that person’s consent is constitutional, wrote separately to express her displeasure with the reasoning of Thomas’ decision to rely on ‘history and tradition.’
                      • The court's laser-like focus on the history of this single restriction misses the forest for the trees
                      • Site Conflicts Of Interest (100%)
                        None Found At Time Of Publication
                      • Author Conflicts Of Interest (100%)
                        None Found At Time Of Publication