Former President Donald Trumpās decision to run in 2024 has put the Supreme Court in a difficult position, and several experts weighed in on the matter with Newsweek.
A case challenging Trumpās candidacy under the 14th Amendmentās disqualification clause is heading to next weekās judicial conference, and legal analysts say it could put the high court in a tough spot to weigh in on electoral politicsāa subject matter the Supreme Court has, for the most part, stayed away from.
In a lawsuit filed earlier this month, long-shot GOP presidential candidate John Castro is arguing that Trumpās allegedly unconstitutional candidacy will cause him āa political competitive injury in the form a diminution of votes.ā Under the 14th Amendment, individuals who have āengaged in insurrection or rebellionā against the U.S. are prohibited from holding public office. Castro claims that Trumpās role in the January 6, 2021, Capitol riot falls under the clause.
āThe Trump ballot case may be the Supreme Courtās toughest yet,ā former federal prosecutor and president of West Coast Trial Lawyer Neama Rahmani told Newsweek. āMany of Trumpās cases have been unprecedented, but this one more so, because there is so little legal precedent on which to rely on, and most of it dates back to the Civil War.ā
āIn the unlikely event that the Justices actually disqualify Trump from running for president, that decision may be met with massive protests and civil unrest,ā Rahmani said. āTheyāre going to have to decide for the first time who has standing to bring a 14th Amendment, Section 3 challenge, and whether the provision has any teeth.ā
Bruce Peabody, a politics professor at Fairleigh Dickinson University, told Newsweek that while the justices will have to address Trumpās candidacy under the statute at some point, this may not be the case where theyāll rule on the former presidentās eligibility to run for the White House.
ā[The justices] like to intervene when thereās legal uncertainty surrounding an issue, especially from dueling lower court decisions,ā Peabody said. āWe donāt have that on the question of Trumpās eligibility, at least not yet. The justices have so many flexible doctrines available to dump this case off their laps, itās hard to imagine they wonāt live to fight another day.ā
If the Supreme Court did take up Castroās case, their decision would be limited to whether or not Castro had standingāwhether a plaintiff is the appropriate person to bring a legal challenge or someone who has suffered harm or injury in a real wayārather than Trumpās ability to run for office. If they sided with Castro, the case would be sent back down to the trial courts to hear whether Trump could be barred from running for office.
The Supreme Court will mostly likely proceed with caution since āThe Court often deems these disputes āpolitical questionsā that do not have any kind of judicially discoverable outcome and instead should be left to the political processes to decide,ā Alex Badas, a political scientist focused on judicial politics, said.
āThe only way that the Supreme Court would take up one of Castroās cases is if there is a Circuit split,ā he told Newsweek.
Although Castro has filed multiple lawsuits across different jurisdictions in at least 14 states, Badas said it would be unlikely for any of them to result in a circuit split where one or more appeals court offers conflicting decisions on the same legal issue.
Constitutional lawyer Kent Greenfield agreed, pointing out that the Supreme Court will likely wait to see what lower courts do since the only ruling on any 14th Amendment case, has answered the question about whether the lawsuits have standing.
Greenfield told Newsweek he would be āshockedā if the justices granted standing on the case.
āThere are several other serious cases in the lower courtsāmost notably the one filed recently in Colorado, using circuit precedent written by Gorsuch when he was on the circuit court,ā he said. āI think the Court will wait to see what the lower courts do and will only wade into this serious and divisive issue if there is a split among the circuits. Or, if we get to the spring and there is an important primary state in which Trump has been taken off the ballot, I could imagine the Court stepping in at that point.ā
āEither way, we have some months before the Court gets involved. We will need to watch what happens in the lower courts,ā Greenfield said.
Itās not difficult at all if the courts were indifferent. We now know they are not.
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