Former federal judge: Supreme Court ‘dangerously betrayed’ democracy with Trump disqualification decision

Editor’s note: Luttig and Tribe wrote the op-ed published on March 14 in The Atlantic. A previous version of this story included incomplete information.

Retired federal judge J. Michael Luttig issued a searing rebuke of the Supreme Court’s unanimous decision that Colorado could not disqualify former President Trump from the ballot under the 14th Amendment’s insurrection ban, which preserved his ability to seek a second term.

In a piece co-authored with legal scholar Laurence Tribe published Thursday in The Atlantic, Luttig, a longtime conservative jurist on the 4th U.S. Circuit Court of Appeals, said all nine justices “dangerously betrayed” democracy in making their decision.

Voters and advocacy groups had filed dozens of challenges to Trump’s ballot eligibility in states across the country, claiming his actions surrounding the Jan. 6, 2021, Capitol attack triggered his disqualification.

The high court sided with Trump by ruling Congress has exclusive authority to enforce the 14th Amendment to disqualify federal candidates.

Luttig, who had been vocal in support of the Colorado Supreme Court’s decision to bar Trump from the ballot, described Section 3 of the 14th Amendment as the Constitution’s “safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability.”

“Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted,” Luttig wrote.

Luttig pushed back on the argument that barring Trump from the ballot would be undemocratic, writing: “Disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.”

He continued, “That the disqualification clause has not previously been invoked to keep traitors against the Constitution from having a second opportunity to fracture the framework of our republic reflects not its declining relevance but its success at deterring the most dangerous assaults on our government until now.”

Luttig, who previously submitted an amicus brief in the case, reiterated his core arguments in favor of upholding the Colorado decision.

“What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written,” Luttig wrote.

“Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.”

Updated at 10:13 a.m. March 21