Liberal groups hope to retain former president Donald Trump absent from the polls for his role in the January 6, 2021 attack on the U.S. Capitol are turning to a surprising source as they make their case before the Supreme Court: the late Justice Antonin Scalia and several of the court’s current conservatives.
Forces opposed to Trump cite a 2014 concordant Scalia’s opiniona hero of the conservative legal movement who died in 2016, as proof that the 14th Amendment’s “insurrectionist ban” applies to former presidents — not just rank-and-file federal officials.
This blockbuster case will determine whether Trump can run for president again. Oral arguments are scheduled for next Thursday.
On a court where conservatives hold a 6-3 supermajority, including three Trump nominees, citing Scalia is no coincidence. Defenders hope to convince judges that they can dismiss Trump’s arguments in a way that remains consistent with conservative legal principles.
“Invoking Scalia is sort of an attempt to cite some moral authority for one of the Court’s great originalists,” said Derek Muller, a professor at Notre Dame Law School who is an expert on the case. “They don’t cite just anyone.”
Trump claims that presidents are not “officers” of the United States – a term used in the post-Civil War 14th Amendment – and therefore the ban does not apply to him. Instead, he asserts, the term “officers” is intended to refer to officials appointed by the president, who take an oath to uphold the Constitution and then engage in insurrection.
His opponents, including liberal groups and a number of former Republican officials, balked at that reading in a series of “friends of the court” briefs filed Wednesday.
The “plain text requires” that the amendment apply to former presidents, the Constitutional Accountability Center, a progressive legal advocacy organization, told the justices in a brief citing Scalia. Historically, the group writes, “officials in all branches of government viewed the president as an officer of the United States.”
Former conservative appeals judge J. Michael Luttig, who has become a vocal critic of Trump, also cited Scalia in a brief to the court this week.
The Scalia competition, joined by Chief Justice John Roberts and two other conservatives, involved a dispute between the Teamsters and a soda distributor. The late judge wrote that all “officers” of the United States must be appointed by the president “except where” the Constitution “provides otherwise.”
It is on this reservation that Trump’s criticisms are based.
Scalia’s interpretation has drawn strong reactions from other conservatives, including Joshua Blackman, a professor at the South Texas College of Law in Houston, who hopes to participate in the debates next week — in part to explain his reading of the Scalia’s opinion and a brief letter the late judge wrote weeks later.
Blackman thinks it would be a mistake to take Scalia’s terse language in the agreement and letter as a definitive statement of his position.
“Part of the problem with this case is that people debate this issue in blogs and law review articles that don’t get vetted,” Blackman said. “There are significant problems with some of these arguments.”
The Scalia deal is an example in which anti-Trump supporters are highlighting past statements by the Court’s conservatives to counter the former president’s arguments.
Others drew attention to an opinion by Justice Neil Gorsuch written in 2012 when he was a judge on the 10th United States Court of Appeals. Gorsuch wrote that states were allowed to exclude candidates from the ballot if they were constitutionally ineligible for the office they were seeking.
Although it has not been mentioned in recent memory, a case last month indirectly touched on one of the most technical questions in Colorado’s election dispute: whether certain constitutional provisions can be applied on their own (called “self-executing”) or whether they first require Congress to pass a law. The Colorado Republican Party argues that the anti-insurgency clause in Colorado’s case requires Congress to intervene first.
During arguments Jan. 16 in a case focused on whether states can be sued directly when the government takes private property, Justice Samuel Alito, a conservative, asked tough questions of both sides, but appeared at one point to call into question the notion of a constitutional right requiring an act of Congress.
“It seems to be a very weak right if… it is thus subject to limitations,” Alito said.
It remains an open question whether references to such past statements have any influence on the court.
“Oftentimes, members of the court have great respect for each other but will disagree with what they have to say,” Muller said. “But for the public, it can certainly be compelling.”
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