‘Look for a Reversal in a Fairly Short Period of Time’ − Former Federal Judge Expects Supreme Court Will Keep Trump on Colorado Ballot

Yves here. We’ve been warning readers who’ve been on the receiving end of too much Trump Derangement Syndrome afflicted coverage that informed contacts and the more level-headed legal pundits were predicting either a 7-2 or 9-0 Supreme Court win for Trump in the Colorado ballot case. This post, written after the oral arguments, explains why. I had thought earlier that a big reason for probable Supreme Court reticence to validate the Colorado attempt at Trump removal was that the result would be chaos and would also discredit the US electoral process. However, Colorado looks to have made it easy for Team Trump. I had no idea their arguments were so lame.

By John E. Jones III, President, Dickinson College. Originally published at The Conversation

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 officebecause 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.

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  1. JonnyJames

    Two mendacious, corrupt, amoral geriatric freaks are the best that US “democracy” can do. The Kakistocrat-freak show is entertainment for the plebs. BigMoney Elections Inc. generates billions for advertising, marketing, consultancy, DNC/RNC, and candidates. We have the best “democracy” money can buy. We can believe in Santa Claus and the tooth fairy while we are at it

    I expect Rod Serling will show up and tell us “You have entered the Twilight Zone”

    1. timbers

      Based on what you just wrote and which I agree, I personally am not in the least adverse to…”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.” Because that sounds like a much improved outcome vs what we have now.

      1. JonnyJames

        I don’t see that it matters one bit in the final outcome. We can rearrange the deck chairs if we want, but it will change nothing. I would love to believe that the US has a functioning democracy, corruption is minimal, and we have meaningful choice. However, I see mountains of evidence to the contrary. Please set me straight if I am being too skeptical

    2. Carolinian

      Well on the Republican side Trump running is probably forestalling two even more amoral freaks–if not geriatric. Plus I’d say geriatric applies far more to Biden’s decision to run. There’s no explaining it. It’s lesser evilism taken to some kind of desperate last gasp.

  2. Samuel Conner

    Are there implications of a “uniformity” standard for the issue of the difficulties 3rd parties face in gaining ballot access? I have the impression that there is variation among the states in the hoops non-duopoly-endorsed candidates are obliged to jump through to get a ballot line.

    1. timbers

      Exactly. Uniformity for candidates from hell Biden/Trump, but not thee. I’ll gladly kick the table in this rigged game and inject some “non uniformity” into the privileged “uniformed” contestant contest. It’s not as if non uniformity could do worse. I don’t think anything could.

      1. JonnyJames

        Sorry, it looks like I misunderstood your point above: Why not, let’s kick over the apple cart full of rotten apples.

    2. albrt

      I sympathize with your point, but legally there is a difference between states having non-uniform processes and having non-uniform qualifications. It’s pretty well established that states can’t add qualifications – that’s how state term limits were nixed.

      The reason this question is difficult is because the 14th amendment provides a federal standard, but it is so vague that states interpret it non-uniformly.

      1. Samuel Conner

        It would appear to me that a state could adjust its processes to impose prohibitive ballot access burdens on candidates judged by some state entity to have committed specific forms of misbehavior — “he can get a ballot line, but only if he proves that X% of registered voters want him on the ballot.” X would, in practice, probably be larger than what non-duopoly candidates have to prove.

        (Don’t have a horse in this race; I’ll be casting a 3rd party protest vote)

        1. Samuel Conner

          (aside — the prohibitive ballot access burdens for misbehaving would-be candidates arguably already exist — with the misbehaviour defined as “does not submit to the preferences of the Duopoly”)

        2. scott s.

          This really goes back to the Progressive movement of the 1890’s that gave us the Australian Ballot and state-run primaries. Not a poly sci guy, but there is a bit of literature on the impact of these election changes on the party system.

  3. flora

    Thanks for this post. I agree. I think the Court is looking for the legal standard(s) by which Colorado is defending their case of removing a presidential candidate from the ballot… and finding none, imo. Here’s a 2-minute sound clip. Justice Gorsuch questioning Atty. Murray.

    This is just a bloodbath.

    Justice Gorsuch spends two minutes slapping around Colorado’s lawyer.

    You almost gotta feel bad for the guy.


  4. David in Friday Harbor

    Thank you, Jonny James, for making my morning!

    Our SuperBowl-obsessed gambling culture just loves handicapping the Supreme Court but they are typical punters who just don’t “get” it. I was once peripherally involved with a case litigated in that Court (I didn’t argue but I got to sit in the front row). All of the legal pundits predicted that we were going to get our clocks cleaned. Probably as a result of this handicapping, the Number Two guy in the Reagan Solicitor General’s Office argued the case against us.

    We won 9-0.

    I’ve read the Colorado Supreme Court opinion and the dissent. There is no doubt in my mind that The Orange One is an unrepentant insurrectionist. However, Clause 5 of the Fourteenth Amendment clearly states that:

    Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

    As the Colorado dissent eloquently points out, this clause appears to make insurrection a “federal question” that needs to be decided by the feds, if for no other reason than to promote consistency among the states.

    Unfortunately, that lazy, venous, and self-regarding piece of pschitt Adam Schiff made such a politicized dog’s breakfast of his half-baked, poorly investigated, and evidence-lite articles of impeachment that the second impeachment trial led to an improvident acquittal of the Orange Insurrectionist. When it comes to a criminal act by a sitting President, no impeachment, no federal criminal trial for insurrection.

    I would like nothing more than to see the Orange One wearing a jumpsuit of a color matching his hair and skin, shackled at the waist — but Schiff was more focused on grandstanding than on obtaining a conviction. May he rot in hell; Californians please VOTE FOR KATIE PORTER.

    1. JonnyJames

      Cheers David! I am in California, and I agree: Schiff is one of the worst of the worst serially-mendacious, amoral kakistocrat-freaks out there! He is not alone, nothing personal, the corruption is institutional.

  5. Albe Vado

    “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.”

    ‘It was a rebellion!’ really is what they’re going to force into the historical record, huh.

  6. Cat Burglar

    Will states have the power to exclude politicians from standing for office if the candidate is associated with a militant extraparliamentary movement that violates the law? Will they be able to do it without any due process?

    If states had that power, I wonder how it might be used in the case of, say, a candidate pushing Medicare-For-All being linked to a movement using sit-in and peaceful occupations of public buildings at a large scale. A state, or states, could find, through administrative magic, a way to deep six any politician allied to militant organizing, and prevent any ambitious pol from considering such an association in the future.

  7. Benny Profane

    It’s simple. The DOJ has to indict Trump for “insurrection” or, maybe, sedition. Take that process to the end. But, it hasn’t been started, probably because the lawyers involved know the task of ending it, one way or another. Otherwise, it’s all vapor and noise. He’s being convicted in the opinion polls and media. Those aren’t courts of justice. Most of the time. Me too victims groan in response.

  8. scott s.

    My state (Hawaii) has a bill introduced this year by a Senator I consider “left” that gives the chief elections officer the power to decide XIV/3 eligibility for both Presidential candidates and slate of electors. I’m well enough connected to HI R party to discount the possibility of J6-connected electors (there was one Proud Boy affiliated guy convicted, but he was well outside party mainstream). But a scenario (0% chance in HI) where the R candidate “wins” and all R electors vote for Trump (and are thus invalidated per HI law) then HI would seem to lose its electoral vote (4).

  9. AG

    I can´t wrap my mind around this.

    As a complete stranger, from abroad additionally, of all charges the attempt to find more votes in Georgia I however cannot discard.

    This of course regarding the POV of illegality vs. illegitimacy of an action. (legally proven vs. mere moral judgement)

    Following opposite view to the above by legal correspondent John Nichols from THE NATION:

    “The Only Way Trump Stays on the Ballot Is if the Supreme Court Rejects the Constitution
    It’s simple: Amendment 14, Section 3 bars Trump from the ballot. The question today is whether the justices will accept this reality.


    p.s. Weren´t almost all Proud Boys in court identified to be undercover FBI snitches assigned to spy on Antifa???
    Chris Hedges reported on it 1 year ago urging to stick to a fair trial. Otherwise in a few years with reversed House majorities Reps would come after the Left abusing decisions made now against J6-participants.

      1. AG

        In Germany this all (insurrection & election manipulation) appears like part of the one same ball game.
        Of course from the legal POV they are being treated separatly.

        But we ask ourselves: Is it legitimate to detach one charge from the other? Is this not a danger?
        (this is not me but official lingo)

        So for public discourse in Germany the overarching question is a moral not a legal one:
        Does Trump have enough integrity to lead the most powerful nation in the world? Can he be trusted?

        (Whether this also applies to Biden or others is a different matter.)

        If it weren´t for that moral dimension, many outside the US would not care about this case. Because millions can relate to moral questions. Very few have the legal expertise for the legal side of this.

        In how far is it “the right thing to do for a responsible nation” to take one incident into account for a court ruling while ignoring the other, may be more explicit one.

        In Germany this is the perspective.
        Not least because, on our own shores, this same problem arises regularly with prohibition of far-right parties.

        Every time a court rules against prohibition half of the country breaks out into hysteria pointing fingers at aspects that were ignored by the court but which were regarded as the real issue. However in all these cases it affected fringe parties only not the major ones that rule or could rule. Unlike GOP in the US. So the stakes are regarded as much higher.

        p.s. I believe Robert Wright on his Non-Zero podcast raised this very question last year: Does a court ruling limited to a certain issue, not hamper true justice in the light of what probably happened. I am aware, for a legal expert this might be beside the point.

        1. Yves Smith Post author

          I don’t mean to sound harsh, but don’t complain about US legal process when you clearly have not bothered to learn about it. Cases can’t just be tried willy nilly. They have to go to a court that has jurisdiction. So different matters wind up in different courts.

          If you expect morality as a condition for running for office, you are looking in the wrong place. Hillary Clinton received a $100,000 bribe in IIRC 1978, in the form of impossible commodity trading profit. Aside from the fact that her success and her stopping when she hit $100,000 (as opposed to continuing trading after such a great run) were obviously not possible, particularly for a complete newbie trader, three Congresscritters got hold her trading records and presented them to three professional traders, one of whom I know personally. He said the results were rigged, she always traded at the best price of the day, so the trade were allocated to her.

          As Secretary of State, the Clinton Foundation continued to accept donations from foreign donors despite Obama telling her that that was not on once she became Secretary of State. Of course Obama being Obama, he didn’t come down on her for ignoring him.

          Ronald Reagan, almost immediately after leaving office, got a $2.5 million speaking fee for a 20 minute speech in Japan. The way Presidents get paid off now is via ludicrous book advances after they leave office,

          Congress is full of insider traders.

          And in the EU, you have as one of many examples, the unelected Queen of Europe, Ursula von der Leyen, who is up to her ears in corruption scandals. And von der Leyen aggressively seeks to project power beyond Europe.

          1. AG

            Thank you for taking the time. Not harsh.

            I only tried to make – overly complicated – a possibly superficial point regarding German/European publicized opinion.

            This is certainly not my own view.

            That double standard of the EU is simply breathtaking (non-disclosure of Covid-vaccine-contracts voted in favour for by the parliament itself being one of the latest incidents). The same goes for the FRG.

            p.s. a piece regarding Clintons might be interesting. Over at Craig Murray´s place Clintons´ corruption was subject of a blog entry not long ago and much discussion there. But not many with your insight (I believe.)

    1. Roger

      p.s. Weren´t almost all Proud Boys in court identified to be undercover FBI snitches assigned to spy on Antifa???
      Chris Hedges reported on it 1 year ago urging to stick to a fair trial. Otherwise in a few years with reversed House majorities Reps would come after the Left abusing decisions made now against J6-participants.????


      Just possible or more possible ,IMHO that there were informants posing as BLM or Occupy Wall Street protesters committing the crimes we saw on the media.
      Or are you among the Angels?

  10. Mark Gisleson

    Stepping outside the law for a moment, 1/6 did not happen in a vacuum. It’s fairly obvious at this point that the Democrats engaged with the leadership of the FBI and other law enforcement to kettle the crowd and then egg them into action.

    I am very confident that each and every Justice is fully aware of the fact that 1/6 was a hot mess and not what it appeared to be.

    I expect the Court to give zero encouragement to the lawfare crowd. For now, time is on the Court’s side. Time will expose the plots and make Court rulings moot.

    Polticial realities are about to trump this tangled web of malicious prosecutions from our seditious ruling class.

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