Justice Amy Coney Barrett made headlines last week with an intriguing stance in an otherwise routine Supreme Court case, **Vidal v. Elster**, which dealt with First Amendment claims in trademark law. The case revolved around whether the government could refuse to register trademarks that use other people’s names without their permission. Although the decision was unanimous, the justices diverged in their reasoning.
Justice Clarence Thomas followed a classic originalist approach, relying on historical evidence from English and American legal systems. He concluded that a strong historical tradition of restricting unauthorized trademarks of other people’s names exists, and therefore, the First Amendment permits it. Thomas noted, “We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition.”
Barrett, however, disagreed with Thomas’s methodology. In her concurring opinion, she stated, “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. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.” Barrett argued that the evidence provided by Thomas did not firmly establish a historical precedent for the names clause and emphasized the need for a broader principle rather than strictly historical analysis.
The case in question involved a trademark application by Steve Elster, who sought to register the phrase “Trump too small,” referencing a well-known exchange between Trump and Senator Marco Rubio during the 2016 GOP primaries. The U.S. Patent and Trademark Office (PTO) denied Elster’s application based on the Lanham Act’s “names clause,” which prevents the registration of trademarks containing a living individual’s name without their consent. Elster sued on First Amendment grounds, and the Federal Circuit Court of Appeals sided with him. The PTO then appealed to the Supreme Court.
Thomas cited a range of historical cases to support the constitutionality of the names clause, arguing that the tradition of restricting the trademarking of names aligns with common-law practices. Barrett, on the other hand, pointed out that Thomas’s historical evidence was insufficient and that the legislative history of the Lanham Act suggested a broader intent beyond existing common-law traditions.
This case highlights a significant difference in legal theory between Barrett and her conservative colleagues. While Barrett remains an originalist, she demonstrates a willingness to critique and challenge the application of historical evidence when it is weak. She advocates for a balanced approach, considering both historical context and modern principles.
Barrett’s stance in **Vidal v. Elster** is particularly notable given the background of the Second Amendment case, **New York State Rifle and Pistol Association v. Bruen**, where the Supreme Court adopted a strict history-and-tradition test for firearm regulations. Thomas’s majority opinion in **Bruen** dismissed balancing tests in favor of historical consistency, leading to varied and sometimes controversial lower court rulings. The Court is now reviewing a related case, **United States v. Rahimi**, which could further test this strict historical approach.
Barrett’s evolution in judicial reasoning is not sudden. In the 2021 case **Fulton v. City of Philadelphia**, she expressed skepticism about overturning a major precedent based on unconvincing historical traditions. This term, she joined a concurring opinion in a case involving the Consumer Financial Protection Bureau’s funding structure, acknowledging its constitutionality even without historical backing.
While Barrett remains a conservative justice, her willingness to question and refine originalist principles suggests a nuanced approach that could influence future Supreme Court decisions, especially in close cases. Her position in **Vidal v. Elster** demonstrates a careful balance between historical analysis and broader constitutional principles, ensuring that legal interpretations remain robust and well-grounded.
