In refusing to put the USPS mail-in ballots rule into effect, the majority didn’t say very much. I still think there are three big lessons in Monday's ruling.
So odd—that Justices Thomas and Alito seem to remember the Fifties (the “Again” in MAGA) with such fondness. Segregation, biases against Catholics and Southern Italians; so very yummy!
A bullet dodged…for now. But The absence of a written opinion by the court means we do not know the basis for their decision….it leaves the issue open for 2028. I fear gorsuch and Barrett agree with Kavanaugh and believe the post office has authority to issue these rules under its general powers , but implementation so close to the ‘26 election is arbitrary and capricious. The notion that “there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority” is rubbish, but the comment lays down a marker that shan’t be ignored. The statutory power under 39 U.S. Code § 401 (2) to “adopt …such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions” does not extend to determining who is and is not allowed to vote.
Congress MUST pass an amendment to 39 U.S. Code § 401 expressly prohibiting the post office from issuing these regs and mandating that the post office must deliver all mailed ballots , without exception…and must postmark each as first class mail and deliver to the registrar of voters within 3 days of receipt. Otherwise, we will see these restrictions in place in 2028
You're right. Congress must amend the law. The conduct and contentions of Trump, multiple SCOTUS justices and multiple state officials proves that making such law (to use the words of Article I) is "necessary and proper" to govern "the Execution" of "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
But this also is a discussion in which SCOTUS opinions (and other opinions of SCOTUS justices) emphasizing the sovereignty of the people not only can do considerable good, but they also address controlling principles and legal standards.
Citizens United v. FEC from 2010 is an example. In it, the SCOTUS majority (including Alito and Thomas) reminded Americans that “the people are sovereign” in our “republic,” and the powers of the sovereign people necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. Making choices means voting. That “ability” is “essential” to the concept of self-government and operation of our Constitution.
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. Democracy, in general, and our "Republican form of Government" (Article IV), in particular, establish a system in which the people are sovereign. Voting is a quintessential (and extremely important) exercise of the freedom of expression, the freedom of communication and the freedom of association.
“The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” or criticize all our public servants. “Discussion of public issues and debate on the qualifications of” all our current, past or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“Speech” (including voting) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty, i.e., of voters.
Our sovereignty means that “political speech” (including voting) about any of our public servants “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech [including voting] are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
Trump must PROVE (with evidence) two things. First, he must prove how his efforts support a public "interest" that is "compelling." Second, he must prove that his efforts were “narrowly tailored" to achieving that compelling public interest.
I enjoyed reading your post. I agree completely although I wouldn't have thought to write it as elegantly as you did! November must do its work through the people to ensure a lifeline to our democracy!
I've made the same point elsewhere: Amend 39 USC 401 to prohibit the USPS in encroaching upon individual states' own vote- by-mail rules.
Sure, trump will veto such a bill, but it sends a strong message to *some* on the Supreme Court that Congress has ultimate overseeing rôle in the Postal Service's remit, and that a Congressional majority says that only states, not USPS, determines vote- by- mail procedures, and *ultra vires* "interpretations of amended statutes is explicitly barred.
Thank you. Kavanaugh really does not appear to be as smart as he thinks he is, as we see here once again. And who is the audience his separate written pieces that agree or disagree with things actually written for? It's certainly not for us...
Another thing we learn is that Justice Kavanaugh is a follower, not a leader. He is positioning himself to be on the right side of this case when it comes back around, whatever that turns out to be by saying "I can be had. I swing.".
His basis for taking up this position is patently insufficient and consequently devoid of merit. A "plausible argument", "reasonable case to be made" or whatever he called it, for the Postal Service does not measure up to any standard at all. It means nothing. The Postal Service is not in the business of governing. It is a government corporation, in effect, like Amtrak, or Freddie Mac. It is entirely a creature or law and has only those powers and duties vested with it by the statutes that in effect constitute its corporate charter. That is what Kavanaugh was referring to as providing the plausible authority and justification for these rules. It is what the Postal Service stood on. And it is all pure boiler plate. It says nothing about regulating ballots or other articles of mail related to elections.
The Postal Service is not like any other business as it is specifically part of the US Constitution. We citizens have done ourselves a disservice by denigrating the Postal Service as well as diluting its power by only allowing mailed information to be included in its services when we would be far "better off", if all of our electronic media passed through its hands.
Remember the Founders trusted the states to run elections but did not trust them to deliver accurate information or the mail to all of its citizens.
Fine, open up a can of worms if you wish and muddy the waters. I never said it was. Suppose I agree with you on all these points. So what ? (That is called a Demurrer.)So there is a constitutional foundation for the Postal Service ? Good thing. We have a federal government of limited powers and authority with the rest reserved to the states under our Constitution. It confers no authority on the US Postal Service to oversee elections or to regulate the use of mail deliver for such purposes. And Justice Kavenaugh's concurrence still smells as bad as it did before your spoke up.
Kavanaugh thinks the rule is likely lawful - meaning it is constitutional?
Wow! Use of an Executive Agency as a pretext for election interference may be Constitutional? Federalizing Mail-in voting is likely Constitutional?
Astounding!
With friends like this, I’m glad the majority seems to otherwise have the votes to put the issue to bed and look forward to them doing so eventually!
The President has no power over elections. Start there, and send the man packing! Don’t keep us in the electorate guessing about the efficacy of State sanctioned mail-in voting, by entertaining so long such chicanery!
7-2 is still a disgrace, even if a hopefully, lasting victory!
At what point can Alito (and to a lesser extent, Thomas) be removed from the Supreme Court for what is, objectively, misbehavior?
For Thomas, the ethical violations are clear. For Alito, how many times can a SCOTUS justice misrepresent the facts of the case or misapply the plain text of a law through some wild "interpretation" before they cross the line into violating the Good Behavior clause?
I'm not a lawyer, so I have little knowledge in this area, but I feel like (at least for Thomas and Alito), there's definitely enough evidence in the record to make the argument that these two justices are no longer fit to serve on the Supreme Court.
At the point in time when there is a solid Democratic majority in Congress and a two-thirds super majority in the Senate. At which time, all the Justices who voted to save Trump from prosecution in United States v. Trump should be impeached, and for that reason.
I'm shocked there's a Good Behavior clause. There need to be clear ethics statements for SCOTUS to abide by, and there must be clear consequences if they don't. They would both be gone if we had such a thing.
It seems that the clause focuses on impeachment requiring criminal behavior. Taking money from oligarchs likely doesn't qualify, nor does supporting unlawful behavior. I wonder if this clause precludes the ability to ever have an enforceable ethics statement for SCOTUS because ethics and criminality aren't necessarily the same thing.
Actually, that clause (in Article III) clearly doesn't address impeachment. It focuses expressly on a judge's term of office. Judges have a term of office just like the 2, 4 or 6 year terms of office of Representatives, the President and Vice President, and Senators, respectively. But a judge's term of office is defined not by years by behavior (good behavior).
Impeachment, conviction and removal are addressed in a completely different article and in a completely different manner. In the last section of Article II, the People commanded that a judge "shall be removed from Office on Impeachment for, and Conviction of any "high Crimes [or high] Misdemeanors," which include "Treason" or "Bribery."
It is definitely disturbing that two justices, re Alito's, ruled against this. I wonder if a strong argument against allowing the postal service to do this is that they aren't part of the election process itself. I had to look up a word in your post: tendentious. As a person who has always valued using the right word for the right reasons and relishes good prose, I'm not often challenged by word choice. The word makes sense (after I looked it up). So thank you for expanding my vocabulary, and thank you for keeping us so clearly and factually informed. It's definitely what this moment needs!
The next Democratic President should create a new pay and opinions portal for Alito and Thomas. Super-secure, meeting even NSA-level standards. Put the President's most worthless second-cousins on it with a budget of whatever is in their wallet at the time. Send Alito his dissent back with the Proper Nouns changed and tell him that the equities are not in his favor.
Fine piece as usual Steve. Making dissents by using your bias as to what you want reality to be, which is what I see Judge Alito doing, and then Judge Thomas sounding even more twisted, seems good evidence to support term limits for Supreme Court justices!
So odd—that Justices Thomas and Alito seem to remember the Fifties (the “Again” in MAGA) with such fondness. Segregation, biases against Catholics and Southern Italians; so very yummy!
A bullet dodged…for now. But The absence of a written opinion by the court means we do not know the basis for their decision….it leaves the issue open for 2028. I fear gorsuch and Barrett agree with Kavanaugh and believe the post office has authority to issue these rules under its general powers , but implementation so close to the ‘26 election is arbitrary and capricious. The notion that “there is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority” is rubbish, but the comment lays down a marker that shan’t be ignored. The statutory power under 39 U.S. Code § 401 (2) to “adopt …such rules and regulations, not inconsistent with this title, as may be necessary in the execution of its functions” does not extend to determining who is and is not allowed to vote.
Congress MUST pass an amendment to 39 U.S. Code § 401 expressly prohibiting the post office from issuing these regs and mandating that the post office must deliver all mailed ballots , without exception…and must postmark each as first class mail and deliver to the registrar of voters within 3 days of receipt. Otherwise, we will see these restrictions in place in 2028
Optimistic—Congress, unless Democrats sweep, is justly famous for its ineffectiveness.
You're right. Congress must amend the law. The conduct and contentions of Trump, multiple SCOTUS justices and multiple state officials proves that making such law (to use the words of Article I) is "necessary and proper" to govern "the Execution" of "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
But this also is a discussion in which SCOTUS opinions (and other opinions of SCOTUS justices) emphasizing the sovereignty of the people not only can do considerable good, but they also address controlling principles and legal standards.
Citizens United v. FEC from 2010 is an example. In it, the SCOTUS majority (including Alito and Thomas) reminded Americans that “the people are sovereign” in our “republic,” and the powers of the sovereign people necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. Making choices means voting. That “ability” is “essential” to the concept of self-government and operation of our Constitution.
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. Democracy, in general, and our "Republican form of Government" (Article IV), in particular, establish a system in which the people are sovereign. Voting is a quintessential (and extremely important) exercise of the freedom of expression, the freedom of communication and the freedom of association.
“The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” or criticize all our public servants. “Discussion of public issues and debate on the qualifications of” all our current, past or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“Speech” (including voting) “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty, i.e., of voters.
Our sovereignty means that “political speech” (including voting) about any of our public servants “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech [including voting] are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
Trump must PROVE (with evidence) two things. First, he must prove how his efforts support a public "interest" that is "compelling." Second, he must prove that his efforts were “narrowly tailored" to achieving that compelling public interest.
I enjoyed reading your post. I agree completely although I wouldn't have thought to write it as elegantly as you did! November must do its work through the people to ensure a lifeline to our democracy!
I've made the same point elsewhere: Amend 39 USC 401 to prohibit the USPS in encroaching upon individual states' own vote- by-mail rules.
Sure, trump will veto such a bill, but it sends a strong message to *some* on the Supreme Court that Congress has ultimate overseeing rôle in the Postal Service's remit, and that a Congressional majority says that only states, not USPS, determines vote- by- mail procedures, and *ultra vires* "interpretations of amended statutes is explicitly barred.
And Kavanaugh? Is he bucking for a future CJ position in the post-Trump world? A potential struggle with Gorsuch over MAGA cred?
Thank you. Kavanaugh really does not appear to be as smart as he thinks he is, as we see here once again. And who is the audience his separate written pieces that agree or disagree with things actually written for? It's certainly not for us...
Definitely not as smart as he thinks he is. We saw that at his confirmation hearings, as was true of Thomas those many years ago.
Thank you for this deep analysis of what has taken place.
Another thing we learn is that Justice Kavanaugh is a follower, not a leader. He is positioning himself to be on the right side of this case when it comes back around, whatever that turns out to be by saying "I can be had. I swing.".
His basis for taking up this position is patently insufficient and consequently devoid of merit. A "plausible argument", "reasonable case to be made" or whatever he called it, for the Postal Service does not measure up to any standard at all. It means nothing. The Postal Service is not in the business of governing. It is a government corporation, in effect, like Amtrak, or Freddie Mac. It is entirely a creature or law and has only those powers and duties vested with it by the statutes that in effect constitute its corporate charter. That is what Kavanaugh was referring to as providing the plausible authority and justification for these rules. It is what the Postal Service stood on. And it is all pure boiler plate. It says nothing about regulating ballots or other articles of mail related to elections.
In a word, his concurrence is pure bullshit.
The Postal Service is not like any other business as it is specifically part of the US Constitution. We citizens have done ourselves a disservice by denigrating the Postal Service as well as diluting its power by only allowing mailed information to be included in its services when we would be far "better off", if all of our electronic media passed through its hands.
Remember the Founders trusted the states to run elections but did not trust them to deliver accurate information or the mail to all of its citizens.
Fine, open up a can of worms if you wish and muddy the waters. I never said it was. Suppose I agree with you on all these points. So what ? (That is called a Demurrer.)So there is a constitutional foundation for the Postal Service ? Good thing. We have a federal government of limited powers and authority with the rest reserved to the states under our Constitution. It confers no authority on the US Postal Service to oversee elections or to regulate the use of mail deliver for such purposes. And Justice Kavenaugh's concurrence still smells as bad as it did before your spoke up.
Steve, how can Thomas and Alito continue to erode our democracy?
Kavanaugh thinks the rule is likely lawful - meaning it is constitutional?
Wow! Use of an Executive Agency as a pretext for election interference may be Constitutional? Federalizing Mail-in voting is likely Constitutional?
Astounding!
With friends like this, I’m glad the majority seems to otherwise have the votes to put the issue to bed and look forward to them doing so eventually!
The President has no power over elections. Start there, and send the man packing! Don’t keep us in the electorate guessing about the efficacy of State sanctioned mail-in voting, by entertaining so long such chicanery!
7-2 is still a disgrace, even if a hopefully, lasting victory!
Thanks, Steve!
No mention of the Major Questions doctrine. That seems very powerful here.
At what point can Alito (and to a lesser extent, Thomas) be removed from the Supreme Court for what is, objectively, misbehavior?
For Thomas, the ethical violations are clear. For Alito, how many times can a SCOTUS justice misrepresent the facts of the case or misapply the plain text of a law through some wild "interpretation" before they cross the line into violating the Good Behavior clause?
I'm not a lawyer, so I have little knowledge in this area, but I feel like (at least for Thomas and Alito), there's definitely enough evidence in the record to make the argument that these two justices are no longer fit to serve on the Supreme Court.
At the point in time when there is a solid Democratic majority in Congress and a two-thirds super majority in the Senate. At which time, all the Justices who voted to save Trump from prosecution in United States v. Trump should be impeached, and for that reason.
I'm shocked there's a Good Behavior clause. There need to be clear ethics statements for SCOTUS to abide by, and there must be clear consequences if they don't. They would both be gone if we had such a thing.
Here's the relevant section: https://www.law.cornell.edu/constitution-conan/article-3/section-1/good-behavior-clause-doctrine-and-practice
It seems that the clause focuses on impeachment requiring criminal behavior. Taking money from oligarchs likely doesn't qualify, nor does supporting unlawful behavior. I wonder if this clause precludes the ability to ever have an enforceable ethics statement for SCOTUS because ethics and criminality aren't necessarily the same thing.
Actually, that clause (in Article III) clearly doesn't address impeachment. It focuses expressly on a judge's term of office. Judges have a term of office just like the 2, 4 or 6 year terms of office of Representatives, the President and Vice President, and Senators, respectively. But a judge's term of office is defined not by years by behavior (good behavior).
Impeachment, conviction and removal are addressed in a completely different article and in a completely different manner. In the last section of Article II, the People commanded that a judge "shall be removed from Office on Impeachment for, and Conviction of any "high Crimes [or high] Misdemeanors," which include "Treason" or "Bribery."
Great analysis - thank you!
I think I'm a smart, careful reader -- but you always see things I missed. Thank you.
There may come a time when unmitigated partisanship and sheer stupidity become impeachable offenses.
It is definitely disturbing that two justices, re Alito's, ruled against this. I wonder if a strong argument against allowing the postal service to do this is that they aren't part of the election process itself. I had to look up a word in your post: tendentious. As a person who has always valued using the right word for the right reasons and relishes good prose, I'm not often challenged by word choice. The word makes sense (after I looked it up). So thank you for expanding my vocabulary, and thank you for keeping us so clearly and factually informed. It's definitely what this moment needs!
The next Democratic President should create a new pay and opinions portal for Alito and Thomas. Super-secure, meeting even NSA-level standards. Put the President's most worthless second-cousins on it with a budget of whatever is in their wallet at the time. Send Alito his dissent back with the Proper Nouns changed and tell him that the equities are not in his favor.
Fine piece as usual Steve. Making dissents by using your bias as to what you want reality to be, which is what I see Judge Alito doing, and then Judge Thomas sounding even more twisted, seems good evidence to support term limits for Supreme Court justices!