Liberal groups are leveraging the late Justice Antonin Scalia’s 2014 opinion and the court’s conservative members to prevent former President Donald Trump from running again.
They argue that the 14th Amendment’s “insurrectionist ban” applies to ex-presidents.
Trump claims the ban doesn’t apply to him as he’s not an “officer” of the US.
“Invoking Scalia is kind of an attempt to cite some moral authority for one of the court’s great originalists,” Notre Dame Law School Professor Derek Muller said. “They’re not just citing anyone.”
However, critics, including former Republican officials, counter this, citing historical references and Scalia’s opinion.
“Part of the problem with this case is people are litigating this issue in blogs and law review articles that are unreviewed,” professor Joshua Blackman said. “Some of these arguments have substantial problems.”
“That sounds like a very weak right if … it’s subject to limitation in that way,” Justice Samuel Alito said.
“Many times, members of the court greatly respect each other but will disagree with what they’ve had to say,” Muller said. “But for public consumption, it certainly can be persuasive.”
While some conservatives oppose this interpretation, others highlight past statements from conservative justices to counter Trump’s arguments.
The influence of these references on the court remains uncertain.
