A new brief from conservative former federal judge J. Michael Luttig and others strengthens the growing chorus of arguments at the Supreme Court that Donald Trump is disqualified under the 14th Amendment. And it does so by wielding an interpretative method the GOP-majority high court claims to employ: textualism.
The brief focuses on two textualist points: “First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified.” And second: “the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump.”
Reminding the court of its duty, Luttig’s brief debunks Trump supporters’ stated concern that his disqualification “would be weaponized against others by partisan state courts and state officials.” That’s an “anti-textual, policy argument” that has “no place in this Court’s constitutional jurisprudence,” goes the reasoning in the brief. In support of that proposition, it cites none other than the Dobbs decision that overturned Roe v. Wade, in which the majority claimed that “we cannot allow our decisions to be affected by extraneous influences.”
The brief also pays homage to the late arch-conservative justice Antonin Scalia, arguing that the disqualification clause shouldn’t be construed narrowly. “A narrow construction to promote judicial restraint is just as bad as an ‘unreasonably … enlarged’ construction,” it says, citing a Scalia book.
To be sure, nothing in this brief or any others will bind the justices’ decision in the case that’s set for oral arguments on Feb. 8. And of course, the court could purport to analyze the issue through any lens to reach any result it likes. But like recent amicus briefs from historians that also support Trump’s disqualification, it’s a reminder that the court’s own stated judicial methods should lead it to affirm the Colorado Supreme Court’s ruling against Trump. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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