The legal challenge against former President Donald Trump’s 2024 candidacy will make its way to the Supreme Court later this month, and it may be up to the justices to decide whether or not there are grounds to kick him off the ballot.
John Castro v. Donald Trump—a 14th Amendment case arguing that Trump’s role in the January 6 Capitol riot should disqualify him from running for public office—was distributed to the court last week for an official conference on September 26.
It’s not the first lawsuit against the former president under the U.S. Constitution’s disqualification clause. Still, it is the first to argue that his candidacy could result in “political competitive injury.”
Castro, a former Trump supporter turned Trump critic following the Capitol attack, is also running for the 2024 Republican nomination. He argues that if Trump is allowed in the race, he would be at a “voter and donor disadvantage” since they appeal to the same group of people who must choose between the two GOP candidates.
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Whether the Supreme Court will side with Castro remains to be decided. Another case challenging Trump’s candidacy under the 14th Amendment in Florida was dismissed after a judge ruled that the plaintiff lacked standing to bring his case and that the alleged injuries in the filing were not “particular” to the plaintiff.
The argument has also been the subject of several op-eds, including one co-authored by conservative retired former federal judge J. Michael Luttig and liberal law professor Laurence Tribe, that suggest the clause does disqualify Trump.
Legal scholar and Fox News commentator Jonathan Turley, who has long been a critic of the 14th Amendment, told Newsweek he’s eager for the justices to take up the claim so that the court can clarify the issue.
“I believe that there is an injury to a candidate who believes that he is being placed on a ballot with a constitutionally disqualified candidate,” Turley said. “However, when it comes to standing, Castro ‘had me at hello’ as someone who has long favored broader standing rules.”
Although Turley believes there’s a case to be made before the Supreme Court, he noted that the odds are likely against Castro given his current position in the presidential race.
“The obvious parties to bring these actions are state officials seeking disqualification or the candidates disqualified,” he said. “I expect that some on the Supreme Court are eager to hear the merits of the 14th amendment theory, but they will be less enthused with Castro as the correct party.”
Constitutional lawyer Alan Dershowitz also told Newsweek that he thinks it will be likely for the Supreme Court to deny review.
“The reasons why Castro’s efforts probably won’t succeed are that Trump hasn’t been charged with, much less convicted of, insurrection or rebellion,” former federal prosecutor Neama Rahmani told Newsweek on Monday. “A conviction is not required under the plain language of the Constitution, but it’s telling that even those prosecuting Trump don’t believe that there is enough evidence to convict him of insurrection or sedition.”
Rahmani said that Castro would also be up a tough Supreme Court, a conservative supermajority with three Trump appointees, who would be unlikely to rule against Trump.
Criminal lawyer Norm Pattis, representing Capitol rioter Edward Lang in his petition to the Supreme Court, told Newsweek that although Castro’s argument is “certainly a novel claim,” it shows why the 14th Amendment can be challenging to bring a case on.
Lang is appealing the “obstruction of an official proceeding” charge that he, Trump and other January 6 defendants have been indicted on.
“[Castro v. Trump] illustrates the fundamental weakness in claiming that Section 3 of the Fourteenth Amendment is, in effect, self-enforcing,” Pattis said. “The court should dismiss this claim on standing grounds, or, better yet, simply stating that Castro has failed to state a claim.”