'Constitutionally unforgivable': Ex-federal judge rips SCOTUS’ Trump disqualification ruling

14 March 2024

After the Supreme Court of the United States' (SCOTUS) unanimous decision to strike down the Colorado Supreme Court's ruling to disqualify former President Donald Trump, two legal experts are arguing that SCOTUS committed a grave error.

In a Thursday essay for the Atlantic, Harvard law professor emeritus Laurence Tribe and former US Appeals Court Judge J. Michael Luttig — a conservative George H.W. Bush appointee — lamented what they viewed as the de facto death of Section 3 of the 14th Amendment (better known as the insurrection clause). They argued that the nation's highest court "dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy," adding that SCOTUS "has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted."

Luttig and Tribe systematically took apart SCOTUS' ruling piece by piece, specifically taking issue with the Court's assertion that had it disqualified Trump from the ballot, it would have resulted in a “patchwork” of "divergent state resolutions" squabbling over "what constitutes a disqualifying 'insurrection' and whether the former president had 'engaged' in one." They added that the decision "represents a constitutionally unforgivable departure from the fundamental truth of our republic that 'no man is above the law.'"

The authors noted that during oral arguments, attorney Jason Murray — who represented the plaintiffs seeking to remove Trump from the ballot — laid out how the Court routinely weighs in on individual state-level issues that are naturally applied to the rest of the country. Murray argued that if Trump were removed from Colorado's primary ballot for engaging in an insurrection on January 6, 2021, the Court would settle the matter at the national level.

"Ultimately, it’s this Court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation," Murray said. "And, certainly, it’s not unusual that questions of national importance come up through different states."

"If the Court upholds the state’s disqualification decision, then it will be binding nationwide, in the manner and to the extent decided by the Court. If the state’s disqualification is held to be invalid, then it will be invalid in that state, as well as nationwide. It’s as simple as that," they argued. "From the outset, the hand-wringing about how no state should be empowered to rule over its sister states on the national question as to who might run for president was all smoke and mirrors, manifestly predicated on a demonstrably false premise about the way our judicial system works."

Luttig and Tribe pointed out the hypocrisy of conservative justices who claim to base their judicial philosophy in the doctrines of "originalism" and "textualism." Followers of those doctrines subscribe to the view that the US Constitution should be interpreted in the most direct and simple meaning as the framers originally intended, rather than trying to view them through a contemporary lens. They wrote that those justices' "ostensible fidelity to textualism and their supposed belief in the binding force of original meaning" was exposed as hollow with their ruling in Trump v. Anderson.

"In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning," Luttig and Tribe wrote. "Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power."

"In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War," they added.

Click here to read Luttig and Tribe's essay in full (subscription required).

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