This Is Not the Same Supreme Court That Refused to Meddle in the 2020 Election for Trump

Jurisprudence By Enter your email to receive alerts for this author. Sign in or create an account to better manage your email preferences. Unsubscribe from email alerts Are you sure you want to unsubscribe from email alerts for Dahlia Lithwick? Aug 26, 202612:26 PM Something has changed. Photo illustration by Slate. Photos by Win McNamee/Getty Images, Andrew Harnik/Getty Images, and Getty Images Plus. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. This week, the Supreme Court inserted itself into yet another election case, putting on hold a lower court injunction that halted part of the Trump administration’s March effort to meddle with mail-in ballots by presidential fiat. Because the high court’s decision on Monday was limited to highly technical questions about standing and ripeness, and because there’s a second lawsuit teed up to decide the underlying issues on less abstract grounds, media coverage of the unsigned, shadow-docket decision tended to break along now-familiar lines, specifically: “Panic!” versus “Don’t Panic!” As Slate contributor Richard Hasen explained here, the truth is more complicated and far more speculative. Monday’s order in fact does almost nothing to change mail-in voting rules heading into the November midterms, but it does raise the specter of the court wading in to foment massive confusion in the days and weeks ahead. And as Justice Ketanji Brown Jackson warned in her solo dissenting opinion from the per curiam order, the real issue is not that the court punted a decision on the merits here. The Constitution plainly assigns the power to conduct federal elections to the states, and nobody disputes that in Monday’s intervention. The real mischief here is that the court is now openly manipulating its own malleable elections doctrine to grease the skids for more and more bigfooting—by the court itself—in elections. As Justice Jackson puts it, President Trump’s March executive order claiming all sorts of novel power to impose federal restrictions on voting by mail, and indeed the entire litigation that followed, has been “tailor-made to weaponize this case as a means of destabilizing the nation’s vote-by-mail systems through court-assisted procedural maneuvers.” The majority hasn’t merely blinkered itself to these realities, it has enabled them. The real question isn’t whether or not it’s time to panic about the Supreme Court’s willingness to wade into the midterms, but why the Supreme Court has removed every possible constraint that once prevented it from doing so. Recall that during the 2020 elections, the Supreme Court declined multiple invitations from Donald Trump’s lawyers to get involved in the presidential contest. Were some of the justices election-fraud-curious? Definitely. But were the majority of them willing to indulge Trump’s tantrums about vote fraud and stolen elections? No. What’s changed? Some of it is technical and some of it is atmospheric, Overton window stuff. But a court that felt real constraints in prior elections does not appear to be constrained at all right now. As Alexis Romero points out this week, the technical part is that the high court has now given itself a monopoly on decisions surrounding the timing of election procedures and election litigation, and he who controls the stopwatch controls the outcomes. This was all hopelessly overdetermined years ago. In a frighteningly prescient piece for Politico in 2020, Wendy Weiser and Daniel Weiner of the Brennan Center warned that while the justices opted not to decide the clutch of Trump’s bad-faith election integrity cases, the majority had already radically shifted the election-law landscape that year by distorting principles that would lay the groundwork for election cases in the years ahead. The first, they noted, was the Purcell principle, the judge-made rule providing that federal courts shouldn’t make changes to voting rules immediately before an election. As Weiser and Weiner noted at the time, “in many cases during the lead-up to this election, the Supreme Court itself caused confusion and administrative problems by reversing voting rights rulings from lower federal courts that had already been implemented by election officials, and the circuit courts followed suit.” The 2020 Supreme Court also seemed to have created a Purcell carve-out that would allow the court itself to change election procedures while preventing courts below from doing the same. The authors also warned that after 2020, the court appeared ready to wield Purcell as “a blunt instrument to block all voting rights protections close to an election, regardless of their impact,” and that ”a broad application of this precedent could make it impossible to challenge barriers to voting that were themselves imposed at the last minute, including obstacles erected purposefully to thwart certain voters.” And unsurprisingly, the Purcell fairy has come along to grant the Roberts anti-voting-rights bloc’s wishes time and time again since then. We have already watched the high court trotting out the Purcell principle in deeply cynical ways this year in Texas, Louisiana, and Alabama, giving ever more credence to the notion that Purcell is merely a vehicle used to harm Democrats and aid Republicans. But Purcell isn’t the only systems failure that has colored Supreme Court elections cases of late. The other thing that has changed since 2020 is the shame factor. Back when the high court was batting away lawsuits from the fever swamp, there was a general stench to the claims—the Four Seasons Landscaping grossness of it all was enough to keep all but the most manic conspiracy theorists from indulging in Trump’s all-you-can-eat election-fraud mania. And even though there is still simply no evidence of widespread mail fraud, or of any fraud in the 2020 election, there has been a massive power-washing of Trump’s election denials. This has somehow made it all seem legitimate to claim as fact—as the court itself does in Monday’s per curiam opinion—that Trump’s March executive order on mail-in ballots was somehow “designed to maintain public confidence in federal elections.” And justices who might have been embarrassed to make claims about “bad actors seeking to stuff ballot boxes when early election results suggest a tight race” only a few years ago are now openly saying such things today. Even though every single Trump vote-fraud bombshell is unerringly a bust, it almost doesn’t matter once you have election deniers playing key election roles and Supreme Court justices repeating platitudes about shoring up voter confidence in systems that were never compromised in the first place. And setting aside all of the formal legal structures that should have (and once would have) prevented the high court from involving itself in pending election contests—doctrines like standing and and “irreparable harm” and other matters ably handled in the dissents in Monday’s per curiam—what has absolutely changed, almost without detection, is the fact that whereas after Bush v. Gore nobody really thought the Supreme Court should be in the business of deciding close elections, in 2026, they already do decide them. In the years since the 2020 election, the high court has involved itself in multiple voting cases, many on the shadow docket, many with impacts on pending elections, and many invoking the Purcell principle to cast an ever wider net around what might be justiciable and remediable. In a deep sense, then, what has really changed among the many long-standing constraints on SCOTUS deciding defining election cases is that SCOTUS has created the expectation that they now decide defining election cases. And as the conservative supermajority themselves work to decrease public confidence in voting practices, they swoop in to address the purported problem themselves. It’s not just a race against a clock, then, it’s a race against public expectations, and with every frivolous intervention like the one in Trump v. California this week, the court not only greenlights the Trump administration’s misbehavior for all the reasons Justice Jackson spells out in dissent, it also reinforces the public belief in its own crucial role in legal matters that are too absurd to even be defended on their own merits. And if that is indeed the case here, the question around the next tranche of election cases is less “panic” versus “don’t panic” than it is this: How did we get to the point of normalizing a Supreme Court that can approve election practices that will guarantee chaos, confusion, and doubt, while calling it democratic business as usual? 2020 Campaign Donald Trump Elections Jurisprudence Supreme Court Voting Voting Rights Judiciary Ketanji Brown Jackson 2026 Midterms