The gods having apparently decided that Americans shouldn’t have to suffer two existential crises—extinction from AI, and election overturning from President Trump’s coup de mail—in the same week, the Supreme Court ruled last evening that Trump’s attempt to winnow the electorate by taking over election operations could not go forward. As the ruling came down on the court’s emergency docket, it consisted of just one paragraph upholding lower courts’ stays on Trump’s directive to the Postal Service to withhold mail ballots from states that didn’t comply with Trump’s need to nullify election results through unsubstantiated and fictitious allegations of voter fraud and noncitizen voting.
The ruling left unresolved the larger question of whether a federal agency (the Postal Service) could use its authority to dive into election administration, which is a power the Constitution clearly specifies belongs solely to the states. Presumably, that’s a question that will come before the Court sometime before the 2028 elections. Not surprisingly, Trump’s Gang of Two—Justices Alito and Thomas—issued a dissent, written by Alito, to the majority’s unsigned ruling. Alito argued that the states lacked standing to sue, that it was the states’ own goddamn fault that the issue came before the Court so close to Election Day, and that the Postal Service had the authority to do pretty much what it pleased. The dissent did not consider the question of whether what Trump had ordered the Postal Service to do encroached on states’ authority to run elections.
By now, it’s clear that Alito and Thomas see their role as providing any patina of legal authority they can come up with to whatever Trump desires, no matter what the Constitution may say, as they did in their upholding Trump’s power to effectively overturn the Constitution’s guarantee of birthright citizenship. In effect, they have abandoned their allegiance to the Constitution and sworn allegiance instead to the oath that Trump rolled out last week in his closing talk to the attendees at his midterm convention, where he said:
Please raise your right hand. I pledge to the greatest president in the history of the United States. That loves us so much he can’t even breathe. That I will go out with my family, my friends, I’ll do it any way—I don’t care if I’m registered or not, I’m going to try to cheat like hell like they do. There’s never been bigger cheaters. They don’t care. I am going to go out and I’m going to get my friends, my family. And we are going to vote on November 3, or we are going to vote before that.
Trump’s strikeout at the Supreme Court doesn’t necessarily end his attempts to take over or nullify the likely outcome of the midterms. (A New York Times/Siena poll out today shows Democrats leading Republicans on the midterm generic ballot by “close to 9 percentage points”; an Economist/YouGov poll also out today puts that margin at 11 percentage points.) As retired federal judge Michael Luttig recently wrote in The New Republic, Trump’s congressional lackeys might try to contest the seating of a number of Democrats when the new session convenes on January 3rd—a possibility in the House, less so in the Senate. The courts, Luttig notes, would almost surely declare such action illegal, but, he adds, that could take some time.
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I suppose it’s also possible that Trump might deploy the kind of goons—in this case, both in uniform and out—that he summoned on January 6th, 2021, to keep a newly Democratic Congress from convening, in which case the nation might need some counterforce—the Maryland National Guard, on the orders of Gov. Wes Moore?—to ensure regular order in the halls of government. That kind of intervention might prove too apocalyptic even for Trump in his narcissistic senescence, but who knows.
By the way, I’m obliged to point out that in his On TAP posted at 3 p.m. yesterday, my colleague Bob Kuttner wrote that “if the Supreme Court is going to preserve free elections, it had better stop dithering.” Within five hours of Kuttner’s diktat going live, the Court complied with it. For those of you who play in the prediction markets, keep your eye on Kuttner On TAP for advance word on what’s about to happen.
