‘Look for a reversal in a fairly short period of time’ − former federal judge expects Supreme Court will keep Trump on Colorado ballot

To get the rare perspective of a former federal judge on the oral arguments at the Supreme Court, The Conversation U.S. spoke with John E. Jones III. He is the president of Dickinson College and a retired federal judge appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002. The case is about former President Donald Trump’s claim that he should be allowed on the presidential ballot in Colorado – and other states – because the language of the 14th Amendment does not apply to him.

During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that teaching intelligent design in science classes is unconstitutional. Jones also issued a 2014 ruling legalizing same-sex marriage in Pennsylvania, which preceded the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole one year later.

What’s your overall view of how things went this morning?

I think it’s clear they’re going to reverse the Colorado Supreme Court. There’s no question in my mind. I would look for a reversal in a fairly short period of time. The surprise may be that some of the more liberal justices could join the majority. I would look for an overwhelming majority to reverse. I think you could potentially see some concurring opinions, although I think Chief Justice John Roberts will try to wrap it into one opinion.

There are a lot of parts to the arguments. You could have a justice who concurs in the result but for different reasons. But I think they will recognize that the more uniform they are on this, the better they’ll be.

There could be dissents, but in the end I just didn’t think that they were buying Colorado lawyer Jason Murray’s arguments that each state has the power to judge for itself whether Trump’s conduct before, on and after Jan. 6, 2021, constituted insurrection, and that if it did, they can independently evaluate whether Trump is ineligible to hold office because of the 14th Amendment. I think there is the possibility of a unanimous opinion. I’m not going to be that bold, but Murray had a tough day.

Murray clerked for Justice Neil Gorsuch when he was on the 10th Circuit Court of Appeals and also clerked for Justice Elena Kagan on the Supreme Court. Former clerks are part of judges’ extended family. But sometimes judges and justices will bend over backwards to really nail their clerks, just to show that they’re not getting any kind of special treatment. I thought they were pretty rough on Murray today. Gorsuch really pounded him – and he and Gorsuch probably have a very abiding relationship.

What can we learn about how the justices are thinking about the case?

There’s an old adage that you shouldn’t necessarily predict a result based on questions at oral argument. But it depends. Sometimes, judges and justices are intentionally provocative with their questions – they don’t necessarily signal their mindset or where they’re going. Other times they’re more transparent.

I thought today the questions were really indicative of the perspectives of the questioners.

There’s a real problem to the position of the voters in Colorado seeking to get Trump off the ballot: If the decision is affirmed, you have the potential to have 50 different states all conducting some type of proceeding for which there is no template whatsoever and coming up with disparate results.

That creates different records in different places, which comes down to a due process argument – about the due process afforded to Trump and what mechanism he may have when his ability to get on the ballot is challenged.

The justices are afraid of future cases, where somebody tries to bump somebody off the ballot – even for political reasons or for no reason at all. There’s no standard for adjudicating this. That’s a problem. The prospect of retaliatory actions was talked about, and in this partisan political climate you could see somebody try to knock Joe Biden off the ballot. Then you’d have a court struggling without a standard, trying to figure out what, if anything, Biden did that disqualifies him.

On the side of Colorado, the argument is intertwining Section 3 of the 14th Amendment and the electors clause of the U.S. Constitution, which says that states have the ability to set certain rules and regulations for the conduct of elections underneath Congress’ power to regulate national elections.

They’re saying that the states have the power to decide whether to disqualify someone under their powers in the electors clause. I think that’s a very tough argument to make because of the lack of uniformity. The justices appear concerned about the sheer chaos that would stem from 50 different states adjudicating this question.

The Colorado solicitor general, Shannon Stevenson, said 50 states operating separately is a positive feature of the Constitution’s structure.

During oral arguments they talked about the 1994 case U.S. Term Limits v. Thornton. It was a case that involved 20-plus states that had enacted term limits for members of Congress. Of course, it got challenged up to the Supreme Court, and in the Constitution there’s no amendment that imposes term limits. What that ruling said was that states can’t add conditions for holding public office that are not within the text of the Constitution. It’s a very technical argument but not a bad argument.

What are your observations about the 14th Amendment as it applies to this case?

This was a poorly written section. It was a reactionary section that was essentially enacted, as stated by the justices, as a compromise that made no one particularly happy. It’s vague.

It doesn’t enumerate the president in the list of people it covers – you can see that. So does it cover the president when it talks about people who are an “officer of the United States” or who holds an “office … under the United States”? Then we play this semantical game. I don’t find that particularly availing, though I think you could fit the president into the rubric.

I think it is a very easy argument to make that Trump was an insurrectionist. But there are no standards. Where’s the due process?

There’s an element of trying to torture a very poorly written section down into something that fits the situation in 2024. That creates enormous headaches for lawyers and judges and justices. It’s just not clear what the amendment means. And when there’s unclarity like that, that makes for a tough go for a justice.

The way Kagan, for example, may write an opinion is to really lean on the fact that it was an insurrection, but it’s a bad section of the Constitution here. She might say our eyes don’t deceive and we know what we saw on Jan. 6, 2021, but there has to be a process to this.