Supreme Court Justice Clarence Thomas Gets Publicly Refuted by Amy Coney Barrett

This refutation came in a separate opinion written after Thomas’ own majority opinion evidently mischaracterized Barrett’s stance on the case and her ultimate decision.

Elster brought this legal case forward after the PTO denied his attempt to register the phrase “Trump too small” for t-shirts.

As Elster didn’t receive consent for this trademark idea that would mock former President Donald Trump, the PTO rejected his quest for registration.

According to Elster, this rejection by the PTO violates his First Amendment rights. The Supreme Court sided in favor of the PTO and rejected Elster’s claims, declaring that the First Amendment still allows the PTO to refuse certain registrations, such as Elster’s.

Justice Thomas wrote the majority opinion to explain this decision for six fellow justices, save Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. Though Thomas did write for Barrett, it appears he mischaracterized some of her legal reasoning in this case.

Thomas also explained that U.S. trademark law deals with content-based restrictions, not viewpoint-based restrictions. Therefore, if the restriction occurred because of viewpoint, this would violate the First Amendment.

Thomas wrote, “The names clause turns on the content of the proposed trademark — whether it contains a person’s name. If the trademark does contain a person’s name, and the registrant lacks that person’s consent, then the names clause prohibits registration.”

He wrote, “American commerce became more national in character, and, perhaps because of this shift, Congress enacted the first federal trademark law in 1870. Although States retained their important role, ‘Congress stepped in to provide a degree of national uniformity’ for trademark protection.”

“Justice Thomas mistakenly suggests that I present the federal trademark register as a limited public forum. That is not my position. Rather, I view the content-based nature of the limited public forum as analogous to the trademark registration system. Moreover, by characterizing my argument as a conclusory statement that the limited public forum framework is ‘apt,’ Justice Thomas ignores my reasons for drawing the analogy,” Barrett wrote.

Therefore, these only slightly similar historical precedents cannot establish what Thomas considers to be historical evidence for the names clause in trademark cases.

Sotomayor wrote, “I agree with Justice Barrett that, even if the majority’s historical ‘evidence were rock solid,’ there is no good reason to believe that ‘hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.'”

Sotomayor has insinuated that Thomas only used data and documents that would further his own opinion, rather than looking at all of history. She wrote that this is “the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends.”

“Being in Washington, you have to get used to particularly people who are reckless,” said Thomas in May. “They don’t bomb you, necessarily, but they bomb your reputation or your good name or your honor. And that’s not a crime but they can do as much harm that way.”

“My wife and I, the last two or three years, it’s been – just the nastiness and the lies – it’s just incredible,” Thomas said.

“I think what you’re gonna find, and especially in Washington, [is] people pride themselves in being awful,” Thomas said.

“It is a hideous place, as far as I’m concerned,” Thomas said, saying he prefers places where people “don’t pride themselves in doing harmful things merely because they have the capacity to do it.”

“We may have been a dysfunctional family, but we were a family,” Thomas said of how the court used to be. “It would be inconceivable that anyone would leak an opinion of the court or do anything to intentionally harm one another.”

“I think there’s some concern about that among my colleagues – certainly with me – because it short circuits our process,” Thomas said. “The way that we’re doing it now, I think, is not a thorough way of dealing with very, very difficult issues.”

According to Committee Chairman Dick Durbin, the committee has uncovered trips Thomas was given by a GOP megadonor during an ethics investigation.

Thomas had to recently amend his 2019 financial disclosure report for private jet trips to Indonesia and California.

“Nearly $4.2 million in gifts and even that wasn’t enough for Justice Thomas, with at least three additional trips the Committee found that he has failed to disclose to date,” said Durbin.

“The Senate Judiciary Committee’s ongoing investigation into the Supreme Court’s ethical crisis is producing new information—like what we’ve revealed today—and makes it crystal clear that the highest court needs an enforceable code of conduct, because its members continue to choose not to meet the moment,” said Durbin.

“…We are providing the American public greater clarity on the extent of ethical lapses by Supreme Court justices and the need for ethics reform. Despite an approval rating near all-time lows and never-ending, self-inflicted scandals, Chief Justice Roberts still refuses to use his existing authority to implement an enforceable code of conduct. Until he acts, we will continue our push for the Supreme Court Ethics, Recusal, and Transparency Act to become law,” said Durbin.

According to Gallup data, the number of Americans who disapproved of the Supreme Court last September was 58%, a historic high of disapproval.