Amy Coney Barrett Reveals 'Growing Rift' on Supreme Court—Legal Analyst

Conservative Supreme Court Justice Amy Coney Barrett revealed a "growing rift" on the Court, says legal analyst Tom Wolf.

The Court unanimously ruled against petitioner Steve Elster on June 13 in Vidal v. Elster, which analyzed trademark law and the First Amendment.

Elster wanted to register the phrase "TRUMP TOO SMALL" for use on T-shirts and other apparel starting in 2018 without first obtaining former President Donald Trump's consent. The U.S. Patent and Trademark Office (PTO) rejected his application, citing how the Lanham Act prohibits the registration of trademarks of living persons without consent.

On Thursday, Supreme Court Justice Clarence Thomas, a conservative-leaning judge, delivered the majority opinion that rejected Elster's arguments that his First Amendment rights were being violated.

Thomas wrote, in part, "The Lanham Act's names clause has deep roots in our legal tradition. Our courts have long recognized that trademarks containing names may be restricted. And, these name restrictions served established principles. This history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment. We need look no further in this case."

While Barrett agreed with the majority opinion, she did not agree with some of Thomas' reasoning, writing in a concurring opinion: "The Court claims that 'history and tradition' settle the constitutionality of the names clause, rendering it unnecessary to adopt a standard for gauging whether a content-based trademark registration restriction abridges the right to free speech. That is wrong twice over."

"First, the Court's evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause," Barrett wrote. "Second, the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question."

Barrett added: "In my view, [content-based trademark registration] restrictions, whether new or old, are permissible so long as they are reasonable in light of the trademark system's purpose of facilitating source identification."

Tom Wolf, a constitutional law expert from Brennan Center for Justice at New York University's law school, told CNN: "Barrett's critique of originalism definitely signals what seems to be a growing rift among the originalists on the court about the proper way to use history."

Wolf added: "There definitely is the potential formation here of an alternative or several alternative approaches to history that ultimately draw a majority."

Newsweek reached out to the Supreme Court via online form for comment from Thomas and Barrett.

Meanwhile, Barrett and Thomas are likely to come to a head in an upcoming decision.

As Newsweek previously reported, Barrett showed her strong disapproval of Thomas's analysis during oral arguments in United States v. Rahimi, a case that will decide whether people under a domestic violence civil restraining order have a right to own a gun. A decision is expected on Thursday and Friday, when clear differences between the two conservative justices are likely to be seen again.