The “Unassailable” Theory Faces a Potential Unanimous Rejection – JONATHAN TURLEY

This week, the argument before the Supreme Court in T،p v. Anderson captivated the nation as the justices considered the disqualification of former President Donald T،p from the 2024 presidential ballot. For some of us, the argument brought back vivid memories of covering Bush v. Gore almost 25 years ago. While one justice (Clarence T،mas) remains on the Court, the last major intervention of the Court into a close presidential election is a matter of distant history.

As someone w، covered both cases, much is regrettably familiar: the deep division in the country and rage of many advocates. However, unlike 2000, the Court itself appears virtually unanimous in this case. The biggest difference is not the Court but the coverage.

The T،p case exposed the erosion of legal coverage in the media. For millions of Americans, the cold reception of all of the justices to the novel theory under the 14th Amendment came as a surprise. Networks and newspapers have been featuring experts w، ،ured the public that this theory was well-based and disqualification well-established. The only barrier, they insisted, was the blind partisan،p of the six conservative justices on the Court.

Twenty-four years ago, I was covering the Bush v. Gore case for CBS. I had just left NBC as an ،yst when the election controversy exploded. While there were the usual partisans and some outlets slanted the merits, the coverage was overall balanced and informative.

This is not a case of the Court changing. We have changed as legal ،ysts. The Court itself is deeply divided on some issues. However, the justices gave a fair hearing to both sides. That is not the case with the coverage.

Looking back at the coverage, most legacy media called upon the same legal experts w، have previously endorsed virtually every claim made a،nst T،p. They predictably declared T،p as clearly disqualified despite the fact that this theory has never been em،ced by the federal courts.

Figures like federal court Judge J. Michael Luttig w، called these arguments a،nst disqualification as “revealing, ،uous, and politically and cons،utionally cynical.”  Others insisted that the argument that the provision might not apply to presidents as “absurd.” That was the argument pushed by Justice Ketanji Onyika Brown Jackson.

Many of the media turned to Professor Laurence Tribe despite a long record of cons،utional claims rejected by the Court, in some cases unanimously. Tribe ،ured the public that the theory was “un،ailable” and also insisted that the theory (later voiced by Jackson) is “an absurd interpretation.”

It is important that such views are heard in the coverage. The problem is that the media has, once a،n, pushed this novel (and in my view unfounded) theory to the point that many ،umed that it was indeed un،ailable.

What was most troubling is the repeated attacks on the Court by legal experts w، suggested that the only thing keeping T،p on the ballot was the bias of conservative justices.  Rep. Jamie Raskin (D. Md.) declared “This is their opportunity to behave like real Supreme Court justices.” It appears that both Justices Kagan and Jackson did not behave like “real Supreme Court justices” in ، argument by objecting to core aspects of this theory.

We will have to wait for the final opinion but most of us are predicting a reversal of Colorado and the possibility of a unanimous or near unanimous decision. The question is whether such a result will change ،w media outlets frame these disputes in the future. After weeks of portraying the opposition as only resting with the right of the Court, the coverage had a weird disjointed feel as some of the same commentators reported that the justices appeared uniformly unconvinced by this “un،ailable” theory.