Retired federal Judge J. Michael Luttig appeared on CNN to criticize the Supreme Court's interpretation of the 14th Amendment as part of a ballot case involving former President Donald Trump.
Luttig didn't criticize the decision to keep Trump on the ballot, but he did call the larger 14th Amendment ruling “both shocking and unprecedented.”
“Not for its decision of the exceedingly narrow question presented by the case, though that issue is important, but rather for its decision to reach and decide a myriad of the other constitutional issues surrounding disqualification under [the] 14th Amendment,” Luttig told Jake Tapper.
It's the ruling that only Congress can enforce the 14th Amendment for federal candidates that Luttig thinks is overreaching.
“In reaching and deciding those questions unnecessarily, the court, the majority, as the concurrences said, effectively decided that the former president will never be disqualified from holding the presidency in 2024. Or ever, for that matter,” Luttig continued.
Luttig's argument is that this ruling makes it impossible to ever disqualify anyone for any federal office, since Congress is usually divided and won't agree to do so.
“But even more importantly, as the concurrence said, effectively, the court today decided that no person in the future will ever be disqualified under Section 3 of the 14th Amendment, regardless [of] whether he or she has engaged in an insurrection or rebellion against the Constitution of the United States,” he said.
Luttig compared the ruling to the Warren court's judicial activism.
“It’s stunning in its overreach. It’s a textbook example, Jake, of the kind of activist judicial opinion from the 1960s and the Warren Court era that begat the conservative legal and judicial movement in the 1970s and 1980s. But of course, it’s different here. Because this is unmistakably a conservative court,” he said.
To be clear, Luttig wanted Trump off the ballot in Colorado. He filed an amicus brief in the case to that effect.
That gives context to his complaint and puts it into perspective.
Where Amy Coney Barrett called the liberal justices "strident" for expressing pretty much what Luttig did about the congressional requirement, Luttig was quick to disagree.
“Justice Amy Coney Barrett, who did not join the other five in the overreaching decisions that it made, accuse the three concurrences of stridency in their opinions,” Luttig said. “For your listeners and your viewers: There was not one word of stridency in the concurring opinion by Justices [Sonia] Sotomayor, [Elena] Kagan, and [Ketanji Brown] Jackson. Not one single word of stridency.”
Even when the justice agreed, they disagreed, and that's probably about as good as it's going to get.
