Every court and state official that has addressed the merits of a challenge to Donald Trump’s eligibility under Section 3 of the Fourteenth Amendment — in Colorado, Maine, and Illinois — has concluded that Trump engaged in insurrection. In 150 minutes of argument, no one, not Trump’s lawyer nor any of the Justices, seriously disputed that conclusion. Despite the Justices’ asserted fear of multiple inconsistent state rulings, no court or official anywhere in the country has decided otherwise. And there is one body that could issue a final decision on the law: the U.S. Supreme Court, in the very case before it. 

If the U.S. Supreme Court nonetheless overrules the Colorado Supreme Court and orders Colorado to list Donald Trump on the ballot as if he were a legitimate candidate, it will make a mockery of Section 3 of the Fourteenth Amendment and provide a greenlight to Trump to engage in another insurrection should he return to power.

Section 3 of the 14th Amendment plainly states that “No person shall . . . hold any office, civil or military, under the United States. . . who, having previously taken an oath, . . . as an officer of the United States. . ., to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”  The Constitution and the extensive factual record demonstrating that Donald Trump engaged in an insurrection make clear that Trump is barred from holding any future public office—including the presidency. This conclusion aligns with the original public understanding of the 14th Amendment. Applying an originalist interpretation, two conservative law professors and leaders of the Federalist Society published a paper in 2023 that addresses this question starting from the law and the facts. Their conclusion: Trump engaged in insurrection and is disqualified from the presidency.

During the Supreme Court argument in Trump v. Anderson, some Justices questioned why states should have a role in selecting the president. We have a system called the Electoral College. The Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for president. The Supreme Court has called this power “plenary” and “far-reaching,” and the Electoral College system is how Trump came to be president despite losing the national popular vote in 2016. Whatever the Court’s motivation, if they back away from those constitutional principles now, they will be holding that those principles apply when they favor Trump, but not when they don’t.  

The Supreme Court should step back from the brink and follow the constitutional mandate of Section 3 of the Fourteenth Amendment. The oaths which they took to become Justices require it.