Once again, the Supreme Court is in the spotlight with Justice Amy Coney Barrett’s peculiar stance in last week’s routine case, **Vidal v. Elster**. This case, revolving around First Amendment claims in trademark law, raised eyebrows due to its exploration of whether the government can deny trademarks that use other people’s names without their permission. While the decision was unanimous, the justices’ reasoning took different paths.
Justice Clarence Thomas, a staunch conservative, adhered to an originalist approach rooted in English and American legal history. He asserted that there is a strong historical tradition of restricting unauthorized trademarks using other people’s names, which aligns with the First Amendment. “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,” he stated.
In contrast, Barrett chose to question Thomas’s methodology. In her concurring opinion, she declared, “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.” She contended that Thomas’s evidence did not solidify a historical precedent for the names clause and underscored the need for a broader principle over strict historical analysis.
The case at hand involved Steve Elster’s trademark application for the phrase “Trump too small,” referencing an infamous exchange between Trump and Senator Marco Rubio during the 2016 GOP primaries. The U.S. Patent and Trademark Office (PTO) rejected Elster’s application based on the Lanham Act’s “names clause,” which prohibits 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, leading to the PTO’s appeal to the Supreme Court.
Thomas cited numerous historical cases to support the constitutionality of the names clause, arguing that the tradition of restricting trademarking names aligns with common-law practices. Barrett, however, countered that Thomas’s historical evidence was insufficient and that the legislative history of the Lanham Act indicated a broader intent beyond existing common-law traditions.
Barrett’s stance in **Vidal v. Elster** is significant given the backdrop 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, resulting in varied and sometimes controversial lower court rulings. The Court is now reviewing a related case, **United States v. Rahimi**, which could further scrutinize this strict historical approach.
Barrett’s evolution in judicial reasoning isn’t sudden or surprising. In the 2021 case **Fulton v. City of Philadelphia**, she expressed skepticism about overturning a significant precedent based on weak 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 continues to serve as a conservative justice, her readiness to question and refine originalist principles suggests a nuanced approach that could shape future Supreme Court decisions, particularly in close cases. Her position in **Vidal v. Elster** illustrates a careful equilibrium between historical analysis and broader constitutional principles, ensuring that legal interpretations remain robust and well-grounded.
Source: Red Right Newsfeed
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