Disqualify Trump? The Supreme Court is getting a lot of urgent advice, but no clear direction

(Manuel Balce Ceneta/Associated Press)

Disqualify Trump? The Supreme Court is getting a lot of urgent advice, but no clear direction

Opinion piece, Elections 2024

Harry Litman

January 25, 2024

The magnitude of the Supreme Court’s upcoming decision on whether Donald Trump should be disqualified from running for president can be measured in pounds, namely the weight of the rapidly growing pile of friend-of-the-court briefs that a series of outside groups and individuals have filed with the court.

Trump’s lawyers filed their main arguments a week ago against the Colorado Supreme Court ruling disqualifying him for insurrection under the 14th Amendment, and more than 30 amicus briefs were filed that day. That brought the total to about forty, a number that will surely grow. .

The briefs themselves are divided between those who support the Colorado ruling, those who support Trump’s call, and those who put forward principles to guide the decision without falling on either side. While some come from relatively obscure circles, many come from prominent players that the judges (and the clerks who sift through the briefs) will easily recognize.

What really stands out about the instructions is that they all scream that the sky is falling and that disaster will follow unless the court does as they advise. The problem is that the advice in question is ubiquitous.

In fact, the court is advised by its respectable friends (the meaning of amicus) that whatever it does, the Republic itself is lost. The instructions underline the impression that this will be a case for the ages and one of the toughest in the court’s history.

A brief from prominent election law professors and practitioners, including veterans of both sides of Bush versus Gore, told the court that the country is now more polarized than ever before, far more so than in 2000, and that the court should judge the substance of the case, otherwise you risk causing great harm to the nation. In other words, they argue, the court may not evade it by ruling that another political entity, Congress or the states, must enforce Section 3 of the 14th Amendment, which bars officials who have engaged in an insurrection to hold federal office.

A letter from 179 members of Congress, including Senate Minority Leader Mitch McConnell and other prominent Republicans, agrees that a wrong move by the court poses a serious risk to the democratic process. But they further argue that Congress has the express authority to apply Section 3 through legislation and that the court cannot answer the political questions involved. Accepting these rationales would mean that the court is dodging the question of whether Trump is eligible to run for president.

The NAACP letter, meanwhile, agrees that our nation is at a precipice not seen since the Civil War. Yet, in direct contradiction to lawmakers, it argues that Section 3 is self-executing and fully judicial, that is, it does not require an act of Congress and can be decided by the courts. In fact, the group insists that the failure to disqualify Trump would circumvent our constitutional commitment to the principle that all citizens should have an equal voice in our government.

Former Attys. General Edwin Meese, Michael Mukasey and William Barr, joined by prominent conservative professors, agree on the stakes: one wrong step by the court would be disastrous for the country’s tradition of free and fair elections. But their advice to the court is a mix of the other core lines: They argue that the amendment requires enabling legislation, but also that it does not cover presidential candidates.

There are many more, including an intriguing letter from law professors (and brothers) Akhil Reed Amar and Vikram David Amar, advising the court that Section 3 was not motivated by the Civil War, but by an earlier insurrection in which Trump’s behavior was much resembles. And an upcoming letter from retired federal appellate judge J. Michael Luttig and others is expected to argue that the terms of the 14th Amendment outrightly disqualify Trump.

Amicus briefs can occasionally be decisive. A famous example is the letter from an editorial cartoonist group that helped convince Chief Justice William Rehnquist to side with Hustler magazine over televangelist Jerry Falwell. It highlights the long-standing national tradition of cartooning wild public figures.

As I’ve discussed before, this case, more than any Supreme Court case in decades, combines enormous political stakes with a virtually blank slate of regulatory legislation. The court will have to look for a solution that is legally defensible, widely acceptable to the public and minimally harmful to the court, thereby damaging its public reputation. That turns out to be quite a task.

With all eyes on the judges and the health of our democracy potentially at stake, the court could certainly use a good friend right now.

Harry Litman is the host of the

Talking Feds Podcast




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