The “Unassailable” Theory Faces A Potential Unanimous Rejection

Authored by Jonathan Turley,

This week, the argument before the Supreme Court in Trump v. Anderson captivated the nation as the justices considered the disqualification of former President Donald Trump 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 Thomas) remains on the Court, the last major intervention of the Court into a close presidential election is a matter of distant history.

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

The Trump 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 who assured the public that this theory was well-based and disqualification well-established. The only barrier, they insisted, was the blind partisanship 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 analyst when the election controversy exploded. While there were the usual partisans and some outlets slanted the merits, the legal analysis was overall balanced and informative.

This is not a case of the Court changing. We have changed as legal analysts.

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 who have previously endorsed virtually every claim made against Trump.

They predictably declared Trump as clearly disqualified despite the fact that this theory has never been embraced by the federal courts.

Figures like federal court Judge J. Michael Luttig who called these arguments against disqualification as “revealing, fatuous, and politically and constitutionally cynical.” 

Others insisted that the argument that the provision might not apply to presidents was “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 constitutional claims rejected by the Court, in some cases unanimously.

Tribe assured the public that the theory was “unassailable” 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 again, pushed this novel (and in my view unfounded) theory to the point that many assumed that it was indeed unassailable.

What was most troubling is the repeated attacks on the Court by legal experts who suggested that the only thing keeping Trump 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 oral 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 how 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 “unassailable” theory.