Conservative Supreme Court Justice Amy Coney Barrett has been taking "the gloves off" as she challenges Justice Clarence Thomas and his "wrong twice over" ruling involving former President Donald Trump, according to attorney and legal writer David Lat.
Tensions are apparently mounting between the Trump-appointed Barrett and the scandal-ridden Thomas as the court prepares to issue a historic ruling on the former president's immunity claim, Lat writes in his Original Jurisdiction newsletter.
"Last week, Barrett took the gloves off," Lat writes. "Even though she was a college sophomore when Thomas joined the Court in 1991, making him almost three decades her senior, she wasn’t afraid to disagree with him — vigorously."
Lat was referring to the Trump Too Small case in which the court found the Patent and Trademark Office had not violated free speech rights by refusing to trademark a living person's name without consent.
While Barrett sided with Thomas, she parted ways with some of his reasoning on the use of history when interpreting the Constitution, Lat writes.
"Barrett agreed with Thomas’s ultimate conclusion, but took a hard pass on his history lesson," he writes. "In a concurrence joined by the three liberal justices, Barrett called Thomas’s approach 'wrong twice over.'"
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Barrett also argues Thomas "missed the forest for the trees."
Lat finds evidence of this widening gap between Barrett and Thomas in recent Supreme Court rulings such as Association v. Bruen, in which the court ruled Americans can carry firearms for self-defense.
"This wasn’t Barrett’s first expression of skepticism toward the utility of history," Lat notes.
Nor will it be the last, Lat predicts, and points to one of the most closely watched cases under the court's purview.
Trump's challenge to special counsel Jack Smith's federal election interference case — in which he argues he cannot face criminal prosecution for actions taken as U.S. president — has yet to be ruled upon two months after the Supreme Court heard arguments.
Lat does not predict how the court will rule — but he suggests a rift between the two conservative justices will play a role.
"Look for historical discussion when the Supreme Court decides Trump v. United States," he writes.
