The Volokh Conspiracy

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Justice Barrett's Concurrence in Vidal v. Elster Is a Repudiation of Bruen's "Tradition" Test

I expect Justice Barrett will exhibit her buyer’s remorse of Bruen in Rahimi.


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 majority opinion, with a Thomas concurrence. I also suspect there may have been some consideration for votes to flip, and make the Barrett opinion the majority. But, I don't think that Chief Justice Roberts and Justice Kavanaugh wanted to embrace a repudiation of the Bruen tradition analysis—especially with Rahimi on the horizon. Justice Kavanaugh's one paragraph concurrence, joined by the Chief, praised the "historical pedigree" underlying the majority's analysis. Curiously, Justice Jackson does not join the portion of Justice Barrett's dissent that faults Justice Thomas. She is staying out of the fray. Why generate bad blood when you don't have to? Prudent move.

What confounds me, however, is Part III-B of Justice Barrett's Vidal concurrence. I get it. She doesn't like the majority's tradition analysis. So instead, she makes up means-ends balancing test—the exact sort of test that Bruen rejected! Barrett wrote:

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. (After all, there is a tradition of the latter approach too. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (adopting standard for application of the Necessary and Proper Clause).) In the course of applying broadly worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases. . . . Trademark protection cannot exist without content discrimination. So long as content-based registration restrictions reasonably relate to the purposes of the trademark system, they are constitutional.

Reasonable relation to purpose of an entire system? Favorably citing McCulloch? Who wrote this? A Scalia clerk or a Breyer clerk? You sure could have fooled me. For all of Barrett's criticism of the majority's originalist analysis, she offers no originalist analysis of her own! It almost reads like Chief Justice Warren's opinion in Brown—the history is not clear so we will make stuff up. I would have preferred a restrained holding, saying, "where the history is unclear, we defer to Congress, QED." But that's not what we got. I agree with Professor Mike Ramsey who wrote, "I also don't see how Justice Barrett's 'reasonableness' test arises from original meaning either." Justice Kagan gladly joined this analysis.

If Vidal is a guide, going forward, whenever Justice Barrett convinces herself that there is no strong enough historical analogue to resolve a constitutional case, she will repudiate any originalist analysis as "loose analogies" or "law office history," and instead adopt some form of open-ended interest balancing test. If you were to place Justice Barrett under a polygraph, I'm sure she would insist that she is being the intellectually honest judge, and that Thomas is being unprincipled. I think the truth is she was never fully sold on originalism. Again, read her review of Randy Barnett's book. It was tepid at best. But even as she was skeptical about originalism, she never needed to develop a jurisprudential backup, apart from a few articles on textualism. Maybe a decade of serving with Judges Easterbrook and Wood would have had an impact on her. Who knows? But here we are. Hence, the blank slate. So she is doing what many judges on the Warren and Burger Court did—find history unenlightening, and defaulting to common law constitutionalism.

I'm not saying Justice Barrett will be another Justice Souter. Heavens forbid. She is orders of magnitude more talented than Souter ever was. But Barrett is now on the path to be one of the most potent critics of the Court's originalist majority—and you know that critics of originalism will eat it up. And Justice Kagan will enable her every step of the way. There really is no one on the right who would even ty to work with her. Justice Gorsuch does not strike me as the conciliatory type—indeed, he is consistently opposite of Justice Barrett on most statutory issues. (Most recently in Campos-Chaves.) Justice Kavanaugh could have tried to persuade Barrett in Vidal but could only muster a perfunctory concurrence to make peace. Barrett apparently thinks Thomas is something of an originalist charlatan, and we will see that opinion come out more and more. So who is left? Justice Kagan, who spent her first decade on the Court preaching the virtues of stare decisis will spend the next decade talking about liquidation. As I read the Barrett concurrence, I have in mind the image of Palpatine grooming a young Anakin Skywalker to embrace the dark side. Don't raise the white flag yet, but we may need an appeal to heaven.

What is even more confounding is Justice Barrett's inconsistency with herself. Consider her dissent last term with Justice Thomas in Counterman v. Colorado. Barrett rejected the First Amendment test that Justice Kagan made up out of whole cloth. Barrett referred to Kagan's balancing test as a "Goldilocks judgment." But in Vidal she reverts back to a made-up balancing test with no analysis at all. She announces the balancing test in a single sentence at the very end of an opinion. It is Brennan-esque, like when he introduced the intermediate scrutiny test at the end of Craig v. Boren. At least Justice Breyer would explain why he balances interests in different fashions. But nothing from Barrett. And in a repudiation of one of Scalia's core principles, she cites legislative history to determine the purpose of the copyright regime! Barrett in Part III-B of Vidal and Barrett's dissent in Counterman read like they were written by two different Justices. In the former, she disagrees with Thomas and agrees with Kagan, and in the latter she agrees with Thomas but disagrees with Kagan. Go figure.

I'll return to my theme above. To the extent that Justice Barrett is being inconsistent with herself, it is because she hasn't figured everything out. She is learning on the job. And that sort of iterative process will create dissonance like Vidal and Counterman. This uncertainty also means her votes are truly up for grabs. I suspect most of the Justices have figured out how they will vote on a case before oral argument. Barrett does not. This term Barrett will likely be the Justice most in the majority. And she votes in unpredictable ways. Again, stay tuned for Rahimi, likely on the last day of the term. I think Justice Barrett will call back to her Vidal opinion, and Justice Kagan will be along for the ride.

Finally, to lay down another marker, Vidal may be evidence of a 3-2-4 Court. The Court's most conservative members stick to original meaning, Chief Justice Roberts and Justice Kavanaugh grasp for tradition, and Justice Barrett and the progressives find the tradition is unclear so revert to balancing tests. We could see this lineup more and more. By my account, it appeared twice on the emergency docket in Hamm v. Miller (2022) and United States v. Texas (2022).