Legal expert: SCOTUS should disqualify Trump given 'judicial conservatism' behind CO ruling

21 December 2023

The four Colorado Supreme Court judges who ruled former President Donald Trump is disqualified from the 2024 Republican primary ballot were guided by the same philosophy adhered to by conservatives on the nation's highest court, according to University of Baltimore School of Law professor Kimberly Wehle.

In a Thursday, December 21 essay for The Atlantic, Wehle writes that the six conservatives on the Supreme Court of the United States (SCOTUS) should be inclined to side with the Colorado judges who disqualified Trump under the 14th Amendment to the US Constitution.

"The four justices who voted in the majority adhered to three stalwart principles of judicial conservatism: textualism (by which judges endeavor to strictly apply the plain text of the Constitution), originalism (by which they refer to historical sources for a contemporaneous understanding of that text), and federalism (by which judges take pains to respect the dual sovereignty of the states alongside the federal government as well as the state courts’ concomitant prerogative to construe their own laws)," Wehle wrote.

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"If the purportedly conservative members of the U.S. Supreme Court are intellectually honest about their jurisprudential approach to the law, this case should not be hard," she added.

Associate Justices Amy Coney Barrett and Neil Gorsuch (both of whom were appointed by Trump) are proud adherents of originalism. During her confirmation hearings in 2020, Barrett explained the legal concept of originalism in that she interprets the US Constitution "as a law."

"I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it," she elaborated. "So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it."

In 2019, Justice Gorsuch wrote in TIME magazine that "the meaning [of originalism] remains constant even as new applications arise."

"Living constitutionalists often complain we can’t know the original understanding because the document’s too old and cryptic. Hardly. We figure out the original meaning of old and difficult texts all the time," Gorsuch continued. "Originalism is a theory focused on process, not on substance. It is not 'Conservative' with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written."

According to Wehle, the Colorado Supreme Court gave SCOTUS the perfect opportunity to demonstrate its commitment to originalism while simultaneously bolstering its reputation as an independent and neutral interpreter of the US Constitution.

"The political right, for example, has long assailed progressive judges for emphasizing the purposes behind a law when a plain-text reading would arguably suffice," she wrote. "For conservative justices to abandon that hierarchy now, on a case this consequential, would destroy whatever guise of impartiality the Court has left."

Read Wehle's full essay by clicking here (subscription required).

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