June 20, 2024

There is a Fight Brewing on the Supreme Court

There are some cases about to come before the Supreme Court that are likely to divide the older members of the bench and the younger members on the conservative side of the aisle.

We have traditionalists like Justice Clarence Thomas and Samuel Alito, who lean into a history-centric approach.

Then we have the most recent members, all Trump appointees, especially Justice Amy Coney Barrett, who are willing to take a more modern approach, so a clash is inevitable.

Old v. New

The United States v. Rahimi is a gun law case centering around denying firearms to people who are under domestic restraining orders.

I would bet dollars to donuts that Alito and Thomas vote to bar the law, but Barrett and possibly even Brett Kavanaugh are wildcards here.

We know the liberal justices will vote to uphold the law… I say that with about 99.9% certainty.

Barrett, however, seems to be taking a more modern approach to cases before the court, so it would not be a surprise to see her side with liberals on this one.

That means that if just one more conservative justice bends, the law would be upheld and firearms sales would be blocked to those with a domestic restraining order against them.

Reva Siegel, a professor at Yale Law School stated, “It does seem to me that there’s a fight going on, and Rahimi played an important role in provoking it.”

There is clearly a rift between Barrett and Thomas, as was made apparent in a recent case covering some crude trademarks over anti-Trump t-shirts.

Barrett and Thomas fought, and many believe this was a fight that went far beyond the trademark case.

To be clear, Barrett and Thomas reached the same conclusion, but their methodology for getting there involved two different approaches.

To that point, in her opinion, Barrett wrote, “The views of preceding generations can persuade, and, in the realm of stare decisis, even bind.

“But tradition is not an end in itself — and I fear that the Court uses it that way here.”

Catholic University law professor Jennifer Mascott, who previously clerked for Thomas, observed, “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.

“Justice Barrett is basically raising questions that could really shift and perhaps limit the impact of the way specific [historical] examples are used.”

Barrett is now at a point where she has some time on the bench and is gaining more confidence in her decisions, which is obvious in her opinions. So don’t be surprised if we see her and Thomas clash more and wind up on different sides of arguments as a result.

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