WASHINGTON>> The Supreme Court on Thursday rejected a California lawyer’s attempt to trademark the phrase “Trump too small.”

The decision was unanimous on the bottom line but badly fractured on the rationale, with the justices arguing over whether a history-based methodology introduced in a recent Second Amendment case should be used to decide First Amendment disputes.

The case concerned a federal law that forbids the registration of trademarks “identifying a particular living individual except by his written consent.”

“We hold only that history and tradition establish that the particular restriction before us,” Justice Clarence Thomas wrote for five justices, “does not violate the First Amendment.”

Justice Sonia Sotomayor, in a concurring opinion that in places read like a dissent, was sharply critical of what she said was “the indeterminacy of the court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends.”

“To make matters worse,” she said, “the five-justice majority that undertakes this tradition-as-dispositive inquiry found its friends in a crowded party to which it was not invited.

“That majority has drawn conclusive inferences from its historical evidence, all without any guidance from the litigants or the court below.”

In his trademark application, lawyer Steve Elster said he wanted to convey the message that “some features of President Trump and his policies are diminutive.” Elster sought to use the phrase on the front of T-shirts with a list of Trump’s positions on the back. For instance: “Small on civil rights.”

Thomas dryly noted the basis for the reference. “The mark draws on an exchange between then-candidate Donald Trump and Senator Marco Rubio during a 2016 presidential primary debate,” he wrote, without elaboration.

What Rubio, R-Fla., said was that Trump had “small hands,” adding, “And you know what they say about guys with small hands.”

During a presidential debate, Trump addressed Rubio’s critique.

“Look at those hands. Are they small hands?” Trump asked, displaying them. “And he referred to my hands: ‘If they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”

The Patent and Trademark Office rejected Elster’s application. But a unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the office to allow the registration.

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court. “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”

In earlier cases, the Supreme Court ruled that other provisions of the trademark law ran afoul of the First Amendment. But those cases, Thomas wrote, involved discrimination based on viewpoints.

In 2019, for instance, it rejected a provision barring the registration of immoral or scandalous trademarks.

That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, a government lawyer told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

Justice Elena Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”

A bedrock principle of First Amendment law, she wrote, is that the government may not draw distinctions based on speakers’ viewpoints.

In 2017, a unanimous eight-justice court struck down another provision of the trademark law, this one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”

The decision, Matal vs. Tam, concerned an Asian-American dance-rock band called the Slants. The court split 4-4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.