By John E. Jones III
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.
John E. Jones III President, Dickinson College.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
DaleL says
Although I do not disagree that SCOTUS appears to want this case to go away. I also agree that the Justices appear to be inclined to reverse the Colorado decision. However, that will not necessarily end the issue. There are numerous other states in which there are efforts to remove Citizen Trump’s name from either the primary or general election ballot.
Article II, Section 1, Clause 2 of the Constitution states in part: “Each State shall appoint, in such Manner as the Legislature thereof may direct,…” All states have chosen to elect their respective presidential electors. However, two states (Maine & Nebraska) do so in a somewhat proportional manner rather than a simple winner take all.
There is already a lack of uniformity, albeit not to the degree of keeping someone off the ballot entirely or is there? Consider Florida’s Democratic Party primary this year. The Democratic Party has submitted only one name, Joe Biden, to the state and as a result there will be no presidential primary. Dean Phillips has been kept off the ballot.
Jim says
I think Donald Trump is guilty of treason and represents a clear and present danger to the USA.
That said, I don’t think any single state should be able to remove him from the ballot for insurrection. It’s not that I don’t think he is guilty (he most definitely is) but he has yet to be convicted of any crime to support that. Until that occurs, he must be considered “innocent until proven guilty”. That is the premise of our judicial system.
I do hope that somewhere in this legal system, the gears of justice will turn fast enough to put this disgraceful semblance of a human being on trial before the election. While there is a small percentage of MAGA loyalists that won’t ever accept that their god could do anything wrong, I still believe the vast majority of Americans will not support a convicted criminal for the highest office in this land.
Kat says
Total agreement here. The wheels of justice have turned way too slow where he is concerned in my humble opinion.
Joe D says
Not exactly sure why all the surprise at the Supreme Court’s response to the ballot challenges. Trump pushes EVERY legal issue to the level of the Supreme Court (he FULLY expects the justices he appointed to side with him in deference for their appointments by him). The ONLY time he doesn’t want to go DIRECTLY to the Supreme Court, is when DELAYING the legal process benefits his campaign time line. His legal strategies have ALWAYS included: throw as many delays in the process as possible, lie, throw a Republican colleague “under the bus” for the blame (ie:Steve Bannon/Rudi Gulliani), or attribute the charges to unfair political sabotage.
So the MOST that will probably happen is the equivalent of a legal “slap on the wrist,” and Trump will be allowed to remain on state ballots.
Actually, in my opinion, if Trump looses, he will blame the ballot denials, instead of him not losing fairly by lack of votes.
He CONTINUES to this day to maintain ( despite Multiple court challenges and investigations refuting his allegations of election irregularities in the 2020 elections enough to change the election outcome ) that the election was “stolen” from him. Documentation and sworn testimony from his OWN WHITE HOUSE advisors at the time that they SHOWED TRUMP that he was losing, that he had legally lost, and there was no LEGAL way of challenging the validity of Biden’s win. Yet, he inflamed his constituents at a rally, sending them (captured on video) to the Capitol building to disrupt the confirmation of the ELECTORAL COLLEGE VOTE.
What a mess!!! For us and the status of AMERICAN DEMOCRACY!
Dennis says
What happened to the presumption of innocence? In our Constitutional Republic (not a democracy) everything operates on democratic principals under the rule of law. The mere fact that Trump was never charged with insurrection, much less convicted of same, how could a court rule that he is not eligible to be on the ballot?
The desperation of the Democrats to remove Trump from eligibility to be on the ballot is just another step towards total totalitarian rule. We just about lost our first amendment right to free speech, our second amendment right of self protection is currently under attack, our 4th amendment right to be secure in our person, place and papers is undermined every day by LEO’s who are sworn to uphold and defend our constitutional rights granted by God that no man has the power to regulate or remove.
The radical left wing extremists of the Democratic Party are a cancer on our society, and need to be put in check. Most (80%) are criminals in varying degrees. Not saying the Republicans are all that much better.
The American people for the most part are totally unaware the our country was taken over by a foreign power back in 1871, (by the act of 1871) whereby our nation was sold out to a privately owned banking cabal.
The presence of Trump in politics poses an existential threat to the powers (Rothschild banking cabal) who have covertly taken control of America 153 years ago! For some apparent reason the Democratic Party has aligned itself with this cabal either knowingly or unknowingly, but aligned non the less.
If the American people do not know American history (most don’t) since is formation in 1776, then there is no way they can understand the complexity of the events unfolding today. I strongly advise Americans take the time to read our founding documents starting with the Northwest Ordnance, from there learn the progression of our nations history starting with the act of 1871, followed up by the formation of the Federal Reserve (no more Federal than Federal Express), and on to 1933 and the creation of birth certificates and Social Security cards and the implications those documents have imposed on the American people. Unaware of these events and the ignorance thereof has led to the events playing out today! This is not about Trump, it’s about what Trump intends to do with the cabal that has controlled America and to some extent a good portion of the world who is under the control of the International Monetary Fund (IMF). When you learn this history you will have the beginnings of understanding why the events we are seeing today are playing out.
Ed P says
Isn’t the Rothschild banking conspiracy theory over 150 years old?
Hasn’t it been debunking endlessly?
To all Flagler Live readers, this is a hate filled anti-Semitic conspiracy theory that does not deserve sunlight.
Bet Dennis didn’t get this from “the Murdoch fear machine” aka Fox.
Ps. Hope Dennis is one of my neighbors…yikes!