Essay | The Supreme Court’s Election Dilemma

Yesterday the Supreme Court announced it would hear former President Donald Trump’s appeal of the Colorado Supreme Court’s decision to bar him from the state’s presidential ballot. The Colorado court and the Maine Secretary of State have both ruled that Trump “engaged an insurrection” after taking an oath to uphold the Constitution, and therefore was disqualified from serving as President under Section 3 of the Fourteenth Amendment. In deciding whether to affirm or overturn the Colorado decision, the Supreme Court will find itself in a bind.

The conservative majority, including Chief Justice John Roberts, considers itself textualist and originalist, and conservative legal scholars such as Will Baude and Mike Paulsen have argued that textualism and originalism argue in favor of disqualifying Trump from office. The text of the Fourteenth Amendment is self-executing, they argue, and allows state officials to decide who has “engaged in insurrection” as they see fit, without enabling legislation from Congress. Both the Colorado and Maine decisions relied on Congress’s conclusion in its January 6 report that Trump had aided or assisted the insurrection.