BREAKING: SCOTUS Blocks Trump's Mail-In Ballot BS

0:00Strict Scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas supported by Americans United for separation of church and state are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case.

0:33We've already talked about on the podcast how the Fifth Circuit decision allowing this practice was total BS. I mean, it had to liken the Ten Commandments to basically like a poster, almost suggesting, oh, what, you triggered libs? But the reality is, there's a human cost of Christian nationalist policies like these Ten Commandments laws, as well as the decisions the Supreme Court hands down. Public schools are supposed to be accessible to all. They're not supposed to be instructing on the state's preferred religion or the state's edited version of scripture. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation.

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2:37All I ask of our brethren is that they take their feet off our necks.

2:58Hi, y 'all. It is the Ladies of Strict Scrutiny, coming to you with a quick morning after analysis of the Supreme Court's decision to block the Trump administration's Postal Service regulation, announcing that the Postal Service did not want to deliver mail-in ballots unless states adopted a bunch of last-minute, unnecessary, very burdensome, and likely impossible-to-meet policies governing mail-in ballots. Okay, so the top line most important thing to know in terms of the upcoming critical midterm elections is this. It is now crystal clear that under the law, the Trump administration cannot interfere with absentee voting via the Postal Service.

3:31That means if your state allows you to vote by mail, you will be able to do so consistent with your state's rules, regardless of the Trump administration's diabolical efforts to the contrary. The Supreme Court told the administration that it cannot use the Postal Service to steal or rig an election by throwing out thousands of ballots and disenfranchising people. I'm just going to say, right answer, took a long time to get there. Specifically, the court declined to issue a stay, which is a pause of the lower court's ruling that had invalidated the Postal Service's regulation. So we're going to spend a little bit of time analyzing what the court did, which is going to involve a fair bit of mocking Brett Kavanaugh.

4:11the most pathetic and needy pick-me justice who may have ever lived, and then Sam Alito and Clarence Thomas, who took their addled, pickled, Fox News-consuming right-wing manosphere podcast listening brains to new lows. In addition to all of that, just wanted to emphasize, do not congratulate. Do not give the Supreme Court credit for telling Donald Trump that he doesn't have the power to rig an election in the sloppiest, most chaotic, wildly illegal, last-minute-way possible. Shorter, Leah, do not give the Supreme Court credit for finally deciding to crack open their copies of the Constitution and read the elections clause.

4:51Okay. Just to remind you all, the other reason you ought not congratulate the Supreme Court is because this is the same court that just a few months ago killed Section 2 of the Voting Rights Act and cleared the way for a little unprecedented, completely unorthodox, mid-cycling redistricting where Republicans are authorized and indeed encouraged to cheat democracy and erase the political power of Democratic voters and Black voters in particular. This is the same court that just a few weeks ago opted not to block the underlying executive order, the same one that announced Donald Trump's plans to try and interfere with this election, including using the U.S.

5:29Postal Service to do so. And then just kind of strung us along for these valuable days as the election drew ever nearer as we all wondered, are we really going to have an election that works in any meaningful way or not? And luckily, the answer for now is yes, we will. But the court is again kind of crowning itself the ultimate decider of that critical democratic question. And just to elaborate on what Melissa was just saying, it is because of the earlier Supreme Court decision that the only thing that is blocked right now is the Postal Service regulation announcing plans to decline to deliver batches of ballots.

6:05Other portions of the lawless executive order are actually not blocked, including the portions of the executive order threatening to investigate and prosecute state and local election officials who allow individuals to vote whom the administration believes are actually not authorized to vote. This could still chill election officials' implementation of their own election rules, and that is on the Supreme Court. And the only reason we are still even having to talk about how will this midterm operate, will it actually proceed, is because the Supreme Court declined to block the executive order at a time when some states had already begun to allow people to vote.

6:42So let's break down the order that the court issued late Monday night. In just a couple of sentences, the Supreme Court order gave two reasons for why the lower court could block the Postal Service regulation, or at least why the Supreme Court wouldn't disturb that lower court order. First, the Supreme Court's order said the government is, quote, unlikely to succeed on the merits. That is, a majority of justices seem to be of the correct view that the Postal Service does not, in fact, have the authority to engage in mass disenfranchisement efforts that would supplant state election rules. Second, the Supreme Court's order said the, quote, equitable factors do not favor the government.

7:18Equitable factors include things such as whether the party seeking relief from the court, here the federal government, is likely to suffer irreparable harm and how the other parties might be harmed as well. All right. So that was the majority order. And it was very short, very spare. What wasn't spare were some of the separate opinions. And I just want to say as a pro tip to everyone out there listening, shutting up is free. Saying and writing nothing beyond that is free and costless. So whenever possible, err on the side of efficiency and just shut the fuck up. And not letting your whole ass hang out.

7:56That part. But again, proving that it's never the right course to not let your whole ass hang out and proving that his appointment was never going to be free or costless for most of us, Brett Kavanaugh decided to weigh in anyway. And again, with real cost to all of us who have to read what he had to say, Justice Kavanaugh decided that he was going to make it very clear that he actually does think that the president can use the Postal Service to wipe out state rules regarding mail -in ballots, just can't do it right now. Right? So this is what Kavanaugh wrote. Quote, there is at least a fair prospect that the final rule falls within the Postal Service's statutory authority.

8:38But he said that applying the rule now isn't justifiable because election officials will not have enough time to grapple with it. Shorter, Brett Kavanaugh, I would still really like to be Chief Justice, Mr. Trump. So while this is a. No, do it. Do it the right way. I would still like to be Chief Justice, Mr. Trump. Please. Only you can do it that way, Melissa. I can't do that. So while it's a 7-2 decision on the bottom line of whether to disturb the lower court's injunction blocking the Postal Service regulation with only Thomas and Alito noting their dissents, Kavanaugh's concurrence signals that he's probably going to rule in Trump's favor if this issue comes up before the 2028 election with more lead time.

9:20So I think it's probably better to think of this as a 6-3 majority. majority. So thankfully, right, looking on obviously the bright side here, Gorsuch and Barrett do not join this concurrence, which hopefully means they are on board with the idea that this rule is illegal, not just now, but in general. Not sure I would totally take that to the bank, but that at least is how I am going to optimistically construe their failure to join this concurrence. The bar is in hell, Kate. Also, I know it's there, but they also, I think, and this is obviously critical, don't join the unhinged Alito-Thomas dissent, which we are going to go deep on in a moment.

9:55Because they have dignity, Kate. They still have some shards of dignity. I think that shame maybe still has some power for them. That I think is important. And also, I think they are at least somewhat, even if tenuously, connected to reality, which I think means they realize that the court would own the absolute chaos around this election that would ensue if, in fact, they decided to let Trump move forward with this order and this regulation. So I guess the best read here is that however on board they are, and I think it's enthusiastically on board with the dismantling of the Voting Rights Act, the destruction of real multiracial democracy, they're not fully on board with this sort of blatant election interference.

10:36So I just want to add late breaking. We got a true social post from the president reacting to this. Oh, really? Since we sat down? Oh, yeah. In which he refers to Thomas and Alito as, quote, legends both of his appointees. That's a T-shirt. That is a T-shirt. We got to we got to get that T-shirt for ourselves. Of the justices he appointed who ruled against him. He says, quote, these are not the people I interviewed to serve on the United States Supreme Court. They are merely a shell of their original. They've been body smashed. He goes into the terrorist ruling that is causing all of this, you know, expense, as well as this election ruling that is destroying America.

11:20Wait, Brett doesn't even get an attaboy for the concurrence? He does not. Oh, my God. I know you have to know that Brett Kavanaugh is just fucking crying himself. Absolutely. Brett Kavanaugh with Arthur the Aardvark fists right now. Where else does he go? President closes with this, quote, it is not easy for me. to write this criticism of the United States Supreme Court. It will likely cost me dearly for years to come, sir, if only.

11:54Wow. More breaking news on this recording, ladies. I love this breaking news because, like, let's just be honest. Like, the Supreme Court nominally gave him a loss, but this whole thing has taken so much time. It's so much chaos. I'm sure that the chaos itself is by itself a suppressive action. Like there may be people who are like, do I even need to vote? Like, should I vote? There's so many questions. Like the court has given him a huge assist, even if ultimately this is a formal law. So my guy, like, take the W. Like you got a W in someone even entertaining this absolute nonsense. Well, and I think that's part of the sort of back to the kind of pragmatic sort of effect here.

12:38Yes, this should mean that people are able to vote in the way that they always have in their states. But yeah, I really do worry about all of the uncertainty that has hung around voting by mail in recent weeks because of Trump and because of SCOTUS may mean that people are confused and scared and don't vote by mail. So it's really important there be a full court press to get the word out that Trump has failed here and you get to vote the way that you voted before he tried to put this executive order into place. Thank you for that PSA. Let's go back to our originally scheduled programming, which involves dragging Brett Kavanaugh.

13:14I got to talk to you about this CavCurrence, right? I think Coach K is branching out on his CavCurrence vibes, right? So this particular CavCurrence is doing something that Brett Kavanaugh did in the birthright citizenship case. So do you remember when he wrote his concurrence in birthright citizenship? He was like, I'm ruling against you, Daddy Trump, but don't worry. I'm still preserving the option for you to later do some totally illegal shit, right? I want you to be able to do that. So this is the same vibe here. He is basically like, we're not going to do it in this election, but 2028 is coming up.

13:52And pretty sure there's some statutory authority for the U.S. Postal Service to do this here. Speaking of statutory authority, I've got to wonder if Brett Kavanaugh is even inclined to actually do this major questions doctrine thing for real, for real, because he really, really never seems to want to do it when it would apply to Donald Trump. So listeners, if you haven't been listening to strict scrutiny for your entire life, what are you even doing with your life? But let me catch you up real quick. The major questions doctrine is a totally made up fanfic thing that Neil Gorsuch likes to cozy up to every night before he goes to bed.

14:28And it basically requires Congress to first explicitly authorize any sweeping program that an administrative agency might seek to put in place. For example, student loan relief. This court loves to apply the major questions doctrine mostly to the Biden administration. It has applied the major questions doctrine to Donald Trump in the context of tariffs, but mostly because that was an opportunity to further embed this made-up fanfic into jurisprudence, not because it actually was a major question. In any event, Coach Kavanaugh here doesn't seem to ever want to do the major questions doctrine because if you applied this made-up fan fiction, it would totally apply here.

15:07This is a major program of sweeping repercussions. Shouldn't the court intervene here and make sure that Congress specifically authorized the U.S. Postal Service to completely federalize elections and take all control of elections away from the states? Because that seems pretty consistent with a major policy shift. Seems big. Yeah, it does.

15:54I do want to do hard right things. Not correct things, just hard right things. Exactly. Not the meaning here, Brett. But please see your therapist for some help for how you might be able to evolve to get on my level. Indeed.

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19:25I'm going to pivot to something not at all evolved, in fact, like very unevolved, which is the piece de resistance, the descent of one Samuel Alito, joined by one Clarence Thomas. They basically indicate to LDR that they would allow King Trump to do everything and anything, including rigging and stealing the upcoming midterm elections. Where to even start with this completely unhinged dissent? Like these guys, whoa, what, like, sirs, what are we doing here? Let's highlight a few very chef's kiss features of this dissent. So first of all, this duo has a very creative HGTV-inspired approach to statutory interpretation that is rife with false equivalencies.

20:08The other thing this dissent does is it victim blames the states and Democrats for basically getting themselves into this mess because they objected to a federal takeover of the election process. Again, truly peak Leto to blame the victim. The other thing that it does is it embraces wholeheartedly with their full chest all of these voter fraud conspiracies in the absence of any evidence. I mean, it's truly I saw Goody Proctor forging mail-in ballots with the devil in the moonlight. Like, it's that kind of vibe. And all of this, I think, goes to the fact that at bottom, these two literally could not give a fuck about voters or democracy or an expression of the people's will, because really what they want is what they have right now, which is Donald Trump in office doing the most.

21:01So Alito packs a lot in. We're going to just, again, as Melissa said, take through some of the highlights slash lowlights. One is Alito claims that the Postal Service has the authority to implement this regulation that might disenfranchise literally millions of people and erase state laws governing mail-in ballots. In some ways, both on procedural and substantive grounds, both because the Postal Service has this substantive authority and because he says the Administrative Procedure Act doesn't actually allow you to challenge certain kinds of Postal Service regulations. And one of the ways he does that is by focusing on particular regulation of Postal Service power, including its power to dispose of stuff in the mail that is supposed to be limited to, quote, non-mailable matters, like stuff that exceeds size and weight limits.

21:46And he refers to this provision of the Postal Service law as, quote, tucked away in a corner and niche and thus essentially irrelevant in the context of what he views as this broad, nearly plenary power of the Postal Service to regulate all aspects of the mails. This is the very HGTV forward interior design approach to statutory interpretation. We're just rearranging some furniture here, by which I mean congressional enactments and asking whether this statute has good feng shui. But I mean, Leah, are you even surprised? This is basically the same play that Alito did in Louisiana versus Calais, where he's like, you know what, let me update section two of the Voting Rights Act.

22:28I mean, this is like - Makeovers, interior decorating and more. But this is like trading spaces when there was Hildi. Hildi was the decorator in trading spaces who would literally come in and paint your fucking living room black and put like a vase in the middle of your dining room table filled with nothing but eggs and be like, it's gorgeous. That sounds like how Melania redesigned the East Wing for that first Christmas they had in the White House. Yes, with the menopause trees. Yes, that was crazy. This is a shape rotating approach to statutory interpretation. This is textualism, guys. This is textualism.

23:01But like, seriously, I have no idea what it means to say that some statutory enactments are niche or tucked away in a corner other than that it allows the justice to say that these parts of the statute that I don't like and that prevent me from reaching my desired outcome don't count. Basically, it means what are some statutes between friends and fascists? Nobody puts Congress in a corner except Justice Lado. So, you know, justice. Where is Johnny to come and, like, redeem all of this? Johnny from Dirty Dancing. Anyway. We knew which Johnny you were talking about. I just, like, I don't know. I don't know.

23:37That was for me. I got you. No, no. It's for the millennials. Oh, the youngs. Who don't know their Dirty Dancing. Yeah, yeah. Okay, well, watch that film. Who don't know. I mean, literally, who have never, like, sweated looking at Patrick Swayze while playing a DVD and rewinding it. They haven't lived. They haven't lived. They have not lived. Anyway. Sorry, back to the substance. Folks, in truly epic false equivalencies, Justice Alito suggested in this dissent that the Postal Service regulation committing to throw out your ballots en masse, if any ballot in a batch of ballots, doesn't comply with these arbitrary rules.

24:16He says this is no different than, quote, the basic requirement to list the recipient's address on one side. Sir. water. FYI, my kids would send mail back from camp. And I'm just going to say, schools are not teaching kids how to address an envelope. And I didn't realize that I actually had to do this. So I don't know how my kids learn to address an envelope, but they can't. And the mail still got to my house. So the Postal Service still delivered it. So I'm not actually sure this is the argument he thinks it is. Anyway, the second point Justice Alito makes is that this entire fiasco is really the fault of liberals, Democrats, and the states themselves who decided to challenge this.