How the Court Delivered a Blow to the Lumberjack School of Constitutional Law

How the Court Delivered a Blow to the Lumberjack School of Constitutional Law

A Moment of Supreme Clarity

By Jonathan Turley

Below is my column in USA Today on the unanimous decision of the Supreme Court to reject the disqualification of former president Donald Trump from the 2024 election. Some Democrats are now seeking to resume the effort through Congress to prevent voters from being able to vote for the leading candidate for the presidency.

Here is the column:

“Nothing in the Constitution requires that we endure such chaos.” Those words from the Supreme Court in its Trump v. Anderson ruling on Monday put an end to the effort of Democratic secretaries of state to engage in ballot cleansing by removing former President Donald Trump from the 2024 election.

The court’s decision was one of the most important and impactful moments in its history.

During the first Trump impeachment in 2019, I cautioned Democrats not to toss aside constitutional standards out of their hatred for the president. I quoted from the play “A Man For All Seasons,” when Sir Thomas More is told by his son-in-law that he would “cut a great road through the law to get after the Devil?” More responded, “And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat?”

As More described England, the United States also is “planted thick with laws, from coast to coast.” The nation’s highest court on Monday decided to leave them standing.

After months of activists and experts calling for the court to allow ballot cleansing by individual states, the justices refused. Figures like Harvard professor Laurence Tribe had insisted that the legal theory allowing Trump’s removal from ballots was “unassailable” and rejected opposing positions as “absurd.”

Many news outlets posted the analysis of former federal court Judge J. Michael Luttig, who also called the theory “unassailable” and denounced the arguments against disqualification as “revealing, fatuous, and politically and constitutionally cynical.” He predicted that the court would simply affirm the Colorado Supreme Court.

Democratic members of Congress further pushed the narrative that only judicial activists and MAGA justices would oppose disqualification. Rep. Jamie Raskin, D-Md., declared: “This is their opportunity to behave like real Supreme Court justices.”

Well, the court rejected that “unassailable” theory in a unanimous decision. While Tribe’s view was repeated with little contradiction on many networks and newspapers for months, it failed to garner a single vote from either the left or the right of the court.

Things are not going well for those seeking to remake the nation. In 2020, Harvard professor Michael Klarman warned that all of the plans to change the country were ultimately dependent on packing the court. With the 2020 election, he stated that Democrats could change the election system to guarantee Republicans “will never win another election.”

However, Klarman conceded that “the Supreme Court could strike down everything I just described,” so the court itself had to be changed.

Now that the three progressive justices have joined their conservative colleagues in ruling for Trump, they apparently also will have to go. Former MSNBC host Keith Olbermann declared that “the Supreme Court has betrayed democracy. Its members including Jackson, Kagan and Sotomayor have proved themselves inept at reading comprehension. And collectively the ‘court’ has shown itself to be corrupt and illegitimate. It must be dissolved.”

The problem for many on the left is that the unanimous decision shattered the narrative repeated for months that Colorado would be reversed because the conservative justices would robotically protect Trump (despite the fact that they have repeatedly ruled against Trump and his policies). Now, by Rep. Raskin’s measure, Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor are no longer acting as “real Supreme Court justices.”

Supreme Court transcended ideological divisions

The fact is that the Supreme Court justices have proved, again, that they are precisely the “real Supreme Court justices” that the Founding Fathers envisioned. The court was created to be able to transcend our divisions and politics. On Monday, a court sharply divided along ideological grounds showed the nation that it could speak with one voice. In doing so, it spoke to the things that bind us to each other, including an article of faith in our Constitution that defines us all.

In the news media and in universities, there is a persistent message that the court and the Constitution are the problem. In a New York Times column, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan Doerfler of Harvard and Samuel Moyn of Yale called for the Constitution to be “radically” altered to “reclaim America from constitutionalism.”

Georgetown law professor Rosa Brooks previously went on MSNBC to warn citizens not to become “slaves” to the Constitution and that the Constitution itself is now the problem for the country.

Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin even called upon President Joe Biden to defy rulings of the Supreme Court that he considers “mistaken” in the name of “popular constitutionalism.”

The lumberjack school of constitutional law is the rage on our campuses. Free from the obstructions of constitutional demands, activists (and a newly constituted court) could set about pursuing the devil as a nation of Ropers.

Supreme Court ruling provides moment of clarity

Despite the push of court packing and extreme interpretations of the law, most Americans continue to cling to America’s core institutions and constitutional values.

For those reasons, this opinion could be one of the most significant in the court’s history, not because of what it did but what it would not allow to be done.

It is a moment of clarity for a nation mired in rage politics. It was not just the opinion that brought that clarity but what followed the opinion.

A day after the unanimous ruling, millions of citizens will line up at polling places around the country to vote for their preferred candidates. It is their choice and privilege as citizens. They are also speaking with one voice. Not for a particular party or person, but as free people claiming their right to choose their own leaders.

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(TLB) published  this article from Jonathan Turley with our appreciation for this perspective

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

Header featured image (edited) credit: People standing in line to vote/illustration/scientificamerican.com

Emphasis added by (TLB)

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