Retired federal Judge J. Michael Luttig on Monday called the Supreme Court decision allowing former President Trump to remain on the presidential ballot “stunning in its overreach.”
In an interview on CNN’s “The Lead,” Luttig refrained from criticizing the decision to let Trump stay on the ballot, but he said the Supreme Court’s expansive decision concerning other constitutional matters “was 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.
The Supreme Court unanimously ruled Monday that Colorado cannot disqualify former President Trump from the ballot under the 14th Amendment’s insurrection ban.
The Supreme Court also ruled Congress has exclusive authority to enforce the 14th Amendment to disqualify federal candidates. Trump-appointed Justice Amy Coney Barrett joined the three liberal justices in criticizing that decision.
Luttig, a longtime conservative jurist on the 4th U.S. Circuit Court of Appeals, agreed with the concurrence and said it was not necessary to go beyond the narrow scope of the case.
“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.
“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 reach of the ruling to those of the Warren Court, largely considered the most liberal Supreme Court in recent history.
“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.
Luttig — who filed an amicus brief in January calling on the Supreme Court to uphold the Colorado decision barring Trump from appearing on the ballot — defended the liberal justices against Barrett’s warning not to “amplify disagreement with stridency.”
“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.”