Another court, this time in Michigan, said Donald Trump can be on the primary ballot. But the judge there also said it’s inappropriate for courts to even resolve the 14th Amendment question and that it’s instead a matter for Congress to decide.
The decision from Court of Claims Judge James Redford came after the Minnesota Supreme Court ruled last week that it couldn’t keep Trump from the GOP presidential primary but added that it’s premature to say whether he’s barred from the general election under the Constitution’s insurrection clause. Redford cited the Minnesota ruling in agreeing that the issue isn’t ripe yet as to the general election, noting that, theoretically, Trump might not even be the Republican presidential nominee.
Yet, the Michigan judge’s judicial punt went deeper, reasoning that Trump’s eligibility is a “political question” unfit for court resolution. As an example of another such question, Redford cited the U.S. Supreme Court’s 2019 opinion in Rucho v. Common Cause, in which the justices split 5-4, with GOP appointees in the majority, to say that partisan gerrymandering is beyond federal courts’ reach.
Redford quoted from Chief Justice John Roberts’ opinion in Rucho that said, among other things: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.” The Michigan judge wrote that Trump’s case “presents the potential for running afoul of these principles.” Redford worried about “chaos” from the sheer number of cases presenting “the risk of completely opposite and potentially confusing opinions and outcomes.”
It’s true that the 14th Amendment issue raises novel legal questions that may well produce divergent outcomes. But that’s why we have a U.S. Supreme Court — to settle different opinions reached by different courts around the country.
It’s true that the 14th Amendment issue raises novel legal questions that may well produce divergent outcomes. But that’s why we have a U.S. Supreme Court — to settle different opinions reached by different courts around the country. And that’s the tribunal that likely will have the last word, whether by a decision explaining why Trump is or isn’t disqualified, or by the sort of non-decision that Redford’s opinion augurs.
Indeed, the latter non-decision option may attract the justices, because it would let them maintain the status quo without technically opining on the matter one way or the other. Though, just as Rucho effectively endorsed partisan gerrymandering, not deciding the 14th Amendment question could effectively endorse Trump’s eligibility. So, when will the issue finally get to the U.S. Supreme Court? We don’t know yet, but we may have a better idea in the coming days and weeks. The Michigan ruling will next be appealed through the state judicial system. It doesn’t appear that the Minnesota Supreme Court ruling is being appealed to the U.S. Supreme Court. And on Wednesday, another disqualification case pending in a Colorado trial court is hearing closing arguments, with a decision expected by Thanksgiving, followed by likely appeals regardless of how the judge there rules. That Colorado judge, Sarah Wallace, previously declined to embrace the “political question” theory — so whatever she decides, it may look more like a decision. 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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