Supreme Court Says Why Prevent Trump Violating the Constitution Before It Even Happens?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you.

0:00:02 Jenessa: President has no right to do this. The U .S. Postal Service has no interfering in elections. It must now wonder whether when the government announces a rule change, a resulting legal challenge is too late, too early, or just right. Of course, only this court knows the answer.

0:00:33 Thomas: And welcome to Opening Arguments. This is episode 1292. I'm Thomas. That over there is Jenessa. How you doing?

0:00:40 Jenessa: I'm doing great.

0:00:42 Thomas: Alert!

0:00:44 Jenessa: Yeah, just read like 200 pages of a bunch of bullshit. Feeling great.

0:00:50 Thomas: Yep, we got to talk about it. This was, boy, this was not good news last week. Knows, as of recording, we'll see if anything else has happened, but the bullshit with the post office and the voting and the ballots. Remember you had kind of talked us off the ledge a little bit, you back, I think, but this, yeah, I feel like this wasn't the plan.

0:01:13 Jenessa: No. what, jumping off a ledge is not productive. But yeah, not as bad as the headlines are making it sound. Depending on what you read. For the state of law and politics. In terms of voting, I still think we're going to be okay. This is one to watch and one that I'm angry about. But gonna read some really delightful Jackson footnotes that are hopefully going to shame Roberts and Barrett into doing the right thing when this hits the docket again in like a week.

0:01:46 Thomas: Yeah, it may have already, but we'll Oh, boy. Yeah, this just drives me nuts. It's I know we're going to get into it, but just strikes me as one of those procedural bullshits where when they want it to go their way, it goes their way when they don't want to go, you know, when they wanted to not go our way, whatever it is, because as I'm sure people already saw, it was like, well, it's not ripe yet because there's not enough. You know, nobody's been harmed, but it's just like I'm again thinking back to the effing shadow docket creation story.

0:01:49 Jenessa: Possibly. Mm -hmm. Mm-hmm.

0:02:18 Thomas: Where that was something where they had to come in prematurely on the idea that maybe some coal companies might have maybe had to change their plans prospectively, possibly because of a rule. I mean, it's care about deeply, like oil companies or coal companies, any thought that they might have to change that behavior, that's injury. You can come to the Supreme Court for that. When it's, well... Trump's trying to ruin the election, you know, and steal the election and disenfranchise millions of people. But the ink's not quite dry yet. So let's wait until you haven't been able to vote first. It's like, OK, cool. That's consistent.

0:03:00 Jenessa: Pretty much it. That pretty much the summary.

0:03:02 Thomas: OK, so we don't have to do the episode. School's out.

0:03:05 Jenessa: Will Let me tease you with my delightful line that Sotomayor opens with. Today's decision does not address whether the president's attempts to interfere with the state's administration of the November 2026 elections are lawful. She just said it. He's attempting to interfere. With the elections, not whether his possible attempt, no, his attempts to interfere with the election. We're just saying it out loud now in a decision. Screw it. Like dissents are fiery and it will make you feel better. And hopefully, as we explain the procedural nonsense going on, it's introducing chaos. But I think we're coming out the other end of this with just slightly more chaos and not the downfall of democracy. But we need to watch it.

0:03:58 Thomas: So let's take that break and then we got to dig into it. Hey, support the show, patreon.com/seriouspod, skip the ads. Thanks so much to the patrons who support this. Are the reason that Jenessa can talk us off ledges, multiple. So if you had like ledge budget that you don't need, put it now toward Patreon as a thanks to Jenessa. All right, we'll take a break and we'll dig in.

0:04:24 Thomas: Okay, well, where do you want to begin? Are you going to give us a bit of a review first?

0:04:28 Jenessa: Yeah. All right. So let's refresh our memory here. Back long time ago of March 31st. That's how fast this is moving. Put out executive order number 14399, ensuring citizenship verification and integrity in federal elections, which in the normal times might just sound boring, but it's not. So the critical pieces we're going to have to know. Section two directs the Secretary to make a list of citizens over the age of 18 in every state and distribute it to the states. And the attorney general to prioritize investigating and prosecuting state and local officials who issue ballots to people who are not eligible. It's already illegal. And prosecuting individuals or public or private entities that help with registration of people who aren't eligible. Again, if you do that knowingly, it's already legal. Section 3, the one a lot of us have been very focused on, orders the Postmaster General to issue a rule within 60 days. So I think that would have come out to July 29th, if nothing had been enjoined. Have to create a uniform official ballot envelope, add a trackable barcode. I guess that wouldn't have been the worst thing, except your state already does this. States to report to the U .S. Postal Service 90 days before an election whether or not they intend to use the U !S. Postal service to mail ballots. I don't know how else they

0:06:11 Thomas: Wouldn't it just be a yes?

0:06:12 Jenessa: Would be planning to do that. And then require states, to report, to the US Postal service 60 days before election, a list of all eligible voters. And not deliver ballots to anybody not on that list.

0:06:26 Thomas: So doing a job that no one asked them to do that isn't really theirs to even do for no reason.

0:06:33 Jenessa: It's completely illegal. The Constitution says states run elections and can make laws regulating certain parts of elections. Nowhere in there does it say the president has anything to do with elections or the post office. Completely unnecessary, as always. States are already managing this. What this is, it is a backdoor to force the states to give up their voter rolls.

0:07:02 Jenessa: You would have to provide that list of your eligible voters and they know they are losing over and over again in every single case when they try to force a state to give the list of voters and the state says no, they lose. They haven't even bothered getting that appeal to the Supreme Court because they're going to lose. So backdoor, a workaround to try to he puts this order out. That was March 31st. And lawsuits. Filed April 1st, one filed April 3rd, one filed April 2nd. They just come flying out. One on April 1st, it's a combination of a whole bunch of cases. The Democratic Senatorial Campaign Committee, DSCC v. Trump, that gets filed in the District of Columbia. Carl John Nichols, a 2019 Trump appointee and Clarence Thomas clerk. Denies the injunction. He says, no, you're not harmed. Your harm is not certain. I'm not giving you an injunction, the DC circuit affirms that denial in July 28.

0:08:19 Jenessa: I think this is really important here, keep this in the back of your head, you remember that Purcell principle?

0:08:24 Thomas: What was that?

0:08:25 Jenessa: The one where they say

0:08:27 Thomas: Within days of the election, within 90 days of election or whatever.

0:08:31 Jenessa: They don't have like necessarily a set time, but like if something is too close to an election, we don't want to mess with it. We don't wanna interfere. So we're gonna just...

0:08:42 Thomas: It's something that we like, then we will let it go.

0:08:47 Jenessa: So the DC Circuit says to these plaintiffs, don't worry. You don't need an injunction. Fear has the Purcell principle backwards. If the federal agencies were to take the actions the plaintiffs fear, and if they were to impose those massive changes on the state's voting systems on the threshold of the upcoming election, then those actions, if found unlawful, could be enjoined without implicating any federalism or reliance interests because the injunction would preserve the state's existing electoral status quo. Given the executive order's repeated commands for agency action to conform to the law, this court cannot assume the agencies will impose such late -breaking disruption on the state's conduct of the 2026 elections. On the one hand, that's extremely naive to even pretend that this administration will not try to do something at the last second. I don't know where you've had your head under a rock for... The last 10 years? Like, where have you been? But important. Somebody wrote it down. No, no, no. The Purcell principle would stop this close to an election. What are you talking about?

0:10:01 Thomas: And so, how do you feel about that? Because on the one hand, it's kind of get the idea that if he does a and maybe this isn't exactly what's going on, but if he writes an executive order that's just plainly commanding someone, some agency to do something they can't do anyway. Is there a sense in which it's well, OK, that's need to enjoin it or whatever because it's nothing? Or is that all the more reason to say, hey, you can't do that?

0:10:33 Jenessa: That's where I would lean is like, let's err on the side of caution and stop this.

0:10:38 Thomas: Just so we're all clear.

0:10:39 Jenessa: Like, no? You're a judge. Judge the law. Say law stuff, please. Where we're going to end up with the other two cases that get filed in April and one that got filed today. Are going to all be in the District Court of Massachusetts with a judge whose name you should know because her name should go in the textbooks. Indira Talwani. Do I say this? Everything goes according to plan, this is going to be the most important case of our lifetimes that you don't remember in a couple of years because nothing will have changed.

0:11:19 Thomas: Like this one, this ballot one?

0:11:21 Jenessa: Just, states will just keep doing what they do. They'll just give you your mail-in ballot if you ordered one and you will mail in your ballot and nothing will happen. And you won't know that a crisis was stopped. Just want you to imagine for a second if this did go into effect. And the federal government could either force your state to give up the voter rolls, this thing they have been fighting and winning in courts for months. But because they get to implement a rule at the last second, they force this. And now somebody at the post office is combing through on an individual basis, making arbitrary choices about who they think is a citizen. Whether J .D. Vance thinks you're eligible to vote, or your state refuses and nobody in New York State, including overseas voters who vote in New York State, military voters who voted in New york state, none of them gets a ballot. Can't happen. That that this happens. Like we have gone down the path of we are Russia now where somebody wins with 86 percent of the vote. And that's a total lie. And we all know it. But we've lost control of our elections. This judge is standing in the way of that and stopping it. Just going to forget if nothing eventful happens. So I hope we can remember Judge Talwani, who is saving our ass right now with three different cases. So gets two filed with her. The State of California v. Trump on April 3rd and the League of Women Voters of Massachusetts v.

0:13:13 Jenessa: They both come to her court and are organizational plaintiffs. So the League of Women Voters, the Association of American Residents Overseas, the U .S. Vote Foundation, OCA, Asian Pacific American Advocates, and Delta Sigma Theta Sorority, Inc. don't know.

0:13:36 Thomas: Well, that's weird.

0:13:39 Jenessa: Quite sure what their interest is here, but of these organizations would be great organizations to donate to. Your money to them is saving democracy right now. Are arguing on behalf of the people they represent that these rules would harm them. State of California v. Trump is 23 states and the District of Columbia, one of which being Massachusetts, so they get to go here, saying they are harmed in the administration of their elections. You're trying to interfere with how I administer my elections. Of course, like a whole bunch of states like Alabama decide they want to intervene and say this is an amazing, wonderful rule and we want to fight against this. What happens? Well, um... of these get file motions to dismiss on the other side. You you got no authority to do this, blah, blah. All the reasons she denies in part grants in part. So what's granted in part is every like the ongoing injunctions elections that will happen after November 3rd, 2026 of far enough down the road. We will figure this out by then. But for elections that are going to happen before November 3rd, 2026, we do have to figure something out. Is our timeline here? She's going to say in the first case, the state of California v. Trump, she'll give a preliminary injunction on June 25th. And then on July 27th, the First Circuit will deny a stay. So they will uphold that preliminary injunction. Say, to establish Article III standing, a party must meet a familiar three -part test. You have to suffer an injury in fact. It has to be caused by the conduct complained of, and it will likely be redressed by a favorable decision. The injury has to concrete, particularized, and actual or imminent. And they say here that did in fact happen because these states are harmed in that they are already preparing for the possibility of these rules being implemented the possibility that they will be prosecuted if

0:15:50 Thomas: That sounds a whole lot more real than the stupid oil company, coal, whatever ones that created the shadow docket that

0:15:57 Jenessa: Like we are already printing out what our ballot envelopes are going to look like. And you're trying to tell me we have to make special envelopes? Or does the US Postal Service make the envelope? Like what happens? How does any of this work? We're busy training our poll workers like we have other stuff to do. And we don't know how we're supposed to prepare for this. So you have standing. On the League of Women Voters, she says on 13th, I'm kind of waiting to see what they say over in that D .C. Circuit case. So either if they stay the injunction or if we get a final rule out of the U .S. Postal Service, I'll get you. Otherwise, like, hang tight, everybody. The D .K. Circuit ruling comes out in the very next day. She says, OK, let's get this docket moving. Everybody give me your stuff. And in the League of Women Voters case, she gives us a preliminary injunction on August 11th. To State of California v. Trump, which has now become Trump v. California because he lost at the district court and the circuit court. They have appealed it to the Supreme Court and stay the injunction. 6 -3. It's per curiam, so we don't know who wrote the majority.

0:17:15 Thomas: Is this the now? This is the what just happened or no?

0:17:18 Jenessa: Happened on Monday the 24th. A shadow docket, like, oh my god, emergency, and it's 37 pages. I don' know how it's an emergency, but you had time for that.

0:17:31 Thomas: Gotta be like the longest one. Or, well, is it the dissents or something?

0:17:34 Jenessa: The majority is like 10. Sotomayor's descent joined by Kagan is like four or five and Jackson's is 20. She dissented all by herself and rips this apart. I think she had like 14 footnotes in her descent. Will read them in honor of Matt.

0:17:53 Thomas: Going to need the other justices to have her back more.

0:17:57 Jenessa: Delightful. It is quite good.

0:17:59 Thomas: Like, why is she by herself though, is what I'm saying.

0:18:02 Jenessa: I'm not sure why. Honestly, it might be because it's got a lot of, well, it's bad to say because it calls other people out so much, but Kagan does that all the time. She's not like afraid to do that. So know if there's a strategic element to that of is Sotomayor trying to butter people up while Jackson's like, I'll be the bad guy, like good cop, bad cop. I don'T quite know what that's about. Interesting for sure. They were just like, I'm tired and I'm not reading all that. I'm busy. Which I get it.

0:18:34 Thomas: Doubt it's that.

0:18:35 Jenessa: Happens on the 24th. Now, here's something a little interesting. They had an injunction, right, in the League of Women Voters case that said, hey, U .S. Postal Service, injunction. There will be no writing of rules. August 21st. 9 p .m., they publish the final rule. This decision came out from the Supreme Court on Monday the 24th. After like a whole while of just sitting there doing nothing, the the business day night before, they're like dropping the final ruling. In violation of the injunction, she will issue a holding that you violated my injunction. Get why you would keep drafting it in private, because of course, if the injunction gets lifted, you're going to publish your final rule, and you're, I don't know, very optimistic over there. Why? A day to publish it at 9 p .m. on the Friday before it would drop on a Monday, which you couldn't have known, right?

0:19:24 Thomas: I don't totally follow what you mean. Couldn't have known what. Oh,

0:19:42 Jenessa: The very next day, business day, I suppose, the Supreme Court was about to issue their decision that suddenly made it okay for you to start moving again on this thing that had been paused for months.

0:19:55 Thomas: So And when the Supreme Court, unbeknownst you to everyone, but allegedly maybe these folks was going to, as we now know, strike that down or remove the stay, lift the stay. It. You're saying they published the rule not that day, but Friday before. Huh. That

0:20:18 Jenessa: 9pm on a Friday, it went live. And then Monday, the 24th, I was seeing people at like, morning and midday going, Oh, God, they finalized a rule that's in violation of the injunction. What's going on? Did they like? Publish that at 9 p .m. on a Friday thinking it would get buried in my inbox by Monday morning because it didn't. And then all of a sudden, Monday night, the Supreme Court drops their decision that suddenly kind of makes it okay that they did that.

0:20:47 Thomas: Is interesting.

0:20:49 Jenessa: Little weird.

0:20:49 Thomas: I both don't know why they wouldn't have just waited. But also, why did they do that? I don't know. Yeah, that's interesting.

0:20:53 Jenessa: It makes me wonder if somebody maybe tipped them off that they were about to win.

0:21:03 Thomas: They gain an advantage by doing it a few days early?

0:21:06 Jenessa: Wonder is if they meant to schedule that for release immediately after and they accidentally did it immediately before, which was kind of a dead giveaway. It always be a coincidence. It could, I mean, I think it ends up being a fatal error here, but if I was very optimistic and I thought I was about to win everything because I am the king of the universe and I will win all court decisions forever, I'd be like, move fast on this. Yeah, we're about to winning court, publish everything, get out there. Don't know. I just find it very strange that there was no movement to publish a final rule for like over a month. Months. And just drops right before. I

0:21:51 Thomas: Anyone else talking about that? What the hell?

0:21:53 Jenessa: Have seen literally no one say a thing about it. Case makes a note. She doesn't say, isn't it odd? But she does say that the Supreme Court publishes this decision on Monday and makes no note of the fact that they're saying there is no final rule. But in fact, there is now. Odd. Is frustrating, let's put it that way. On Friday the 21st, everybody started panicking because in violation of the injunction, the U .S. Postal Service just puts out its final rule. And says, OK, here's the rule. The final text, we had like proposed language and we were taking comment, but we never put out a final rule because there was an injunction. Well, here you go, even though the injunction is still in place. What states are going to have to do. It's pretty much what the executive order said. Shock. Unpredictable at all. You're going to have to tell us who is on your list. Say 30 days before the election, to the extent practicable. I don't know how it would be practicable to run an election where you give them a heads up less than 30 days. Like 30 days is already too tight. You have to mail those ballots out to people and then mail them back.

0:23:16 Thomas: Is ridiculous. There's no time for this.

0:23:18 Jenessa: Like absolutely no, there's no time

0:23:19 Thomas: And it's illegal.

0:23:19 Jenessa: For this, and illegal. There's no Time for this in any election ever, let alone an election that, election day is in like a little over two months as of the time we're recording this. Election mailing of absentee ballots in advance is even less than that for the upcoming election.

0:23:39 Thomas: Or it's like already happening, right?

0:23:41 Jenessa: Presume it may well have started in some states if not it's soon like we're hitting chaos point so publish this rule on the 21st and everybody starts panicking and then on the 24th the supreme court says uh one of the cases the stay is lifted start doing stuff and just do do your executive order b enjoy your life this is where it gets interesting so the other case they had been like oh my god everything bad is happening they're publishing the rule so the very next day they were like on a saturday the 22nd they were enjoying uh emergency temporary restraining order help help help

0:23:47 Thomas: Start doing stuff, huh? Yeah.

0:24:21 Jenessa: On the 25th Oh, my God, the Supreme Court has done this. Now what do we do? The judge issues an order noting that they but she grants no relief. And the next day she lifts the injunction. All the injunctions.

0:24:41 Thomas: Because of the Supreme Court and she has to in

0:24:44 Jenessa: Kind of. So she says that. Well, you know what? They said I have to do this. So I'm going to lift the injuction. I'm going to give you leave to refile because here's the thing. We'll get into, I'm essentially what they said is there's no final rule. How can we tell you if the rule's illegal? They haven't finalized it yet. Funny story, they just finalized it. At first when I saw that she lifted the injunction, I was having an absolute panic. Then I read this and realized she's a genius because instead of just leaving this lingering and waiting for the court to either do the same thing or like who knows what's going to happen, it's going lifts her injunction, says refile it, and now everybody has jumped on and requested a temporary restraining order, which the difference between that and an injunction is basically temporary restraigning orders are short. A preliminary injunction would last until the litigation is over. A temporary restrauning order is usually like 10 days, 14 days, but you do not have to have a hearing. You can do shorter briefing. And it's not relevant here, but in some cases, you might not even have to give notice to the other party. You can be like, this is such, I don't even have time to

0:26:11 Thomas: Right.

0:26:11 Jenessa: Serve process or anything. Like, I need a restraining order now. And the way we balance that with due process is it's only short -lived. And you can get it lifted even sooner if you apply. So everybody's like, emergency, temporary restraining order, also a new preliminary injunction. I'm refiling in light of the fact that the rule is finalized now. So I'm harmed now, right?

0:26:37 Thomas: Yeah.

0:26:37 Jenessa: The dumbass thing you said on Monday is no longer true as of the Friday before that, actually. So on Wednesday, yesterday, as of recording this, everybody's filing that on the 26th. On the 27th, the judge's response to that temporary restraining order was that you all need to give me your response why I shouldn't issue a temporary restraigning order by noon. And they did. Your injunction opposition briefs are due Saturday the 29th at 11 p .m. plaintiffs your reply is due monday the 31st at 11 p .m and we will be having a hearing on thursday september 3rd at 9 a .m in my courtroom so we are moving cooking along and we are gonna hear this again for injunction and actually talk about the merits of the finalized rule which is exactly what the executive order said it would be so

0:27:41 Thomas: Well, there's no way you could have known that, though.

0:27:45 Jenessa: She's merged that with the other docket. Also, um, same day, Wednesday the 26th, another lawsuit was filed. State of California v. United States Postal Service, because we can now also sue the post office. Uh, also requesting a temporary restraining order, getting the same exact, uh, schedule on the docket, everybody's suing. Um, docket is cooking along. You need to be watching this. And the docket I would watch in particular, League of Women Voters of Massachusetts v. Trump. Put that in, put in court listener in your search, and it should be the first hit. You'll have to go to a second page. There's 400 filings. Scroll to the end so you can see the most recent thing and you will be able to see she will probably have issued a temporary restraining order by the time this airs. And that'll be in for a couple of days, you know, like two -ish weeks. And then we're waiting on a preliminary injunction. As soon as that goes in, maybe the court will take it on the merits. Maybe they won't. Maybe Um, yeah, this is rocketing through all of a sudden after lingering for months of doing the normal type of thing because the Supreme Court just blew it up on Monday the 24th.

0:29:01 Thomas: Yeah, I understand the Supreme think they're going to agree with the merits on this?

0:29:07 Jenessa: No.

0:29:07 Thomas: I don't think that's going to happen. So is the point of doing the dumb shit they're doing just to own the libs? I just don't understand it. Do they really convince themselves of their stupid procedural objections or reasons that they can't relief?

0:29:10 Jenessa: I don't. Got Alito and Thomas want to plunge us into a fascist hellscape.

0:29:29 Thomas: Yeah, sure. Granted.

0:29:30 Jenessa: On the merits at the very end will be at least 7 -2. It's not going to be 9 -0, even though it should. Gorsuch, I'm going to say from the oral arguments at Watson, he has drank the Kool -Aid about voter fraud. That whole thing where he was like, what if somebody mails a ballot and then they recall the ballot and he was so nasty and shitty about that with

0:29:53 Thomas: That was so dumb. To be fair, he's that way all the time. So, yeah.

0:29:59 Jenessa: Yeah, I actually should not read anything into his tone. That's his tone when he's asking for breakfast. Was acting like he had come up with the smartest objection ever, the cleverest. And it's like, truly, if you know the first thing about how anyone runs elections, you'd be like, oh, that can't happen. But he's not going to listen to anybody. I'm not super surprised if he also buys that, well, there might be like one ever non -citizen who voted. And what would be the harm in? Giving up all of your liberty and your voting rolls and all they're doing right I think he might buy this I concerned that he might have drank the kool -aid on that yeah

0:30:39 Thomas: I don't know. Maybe. Like, you have to drink. Like a shitload of Kool -Aid because it's not just the idea that there might be voter fraud, because sure all of the right wing justices think that's true. They probably think, you know, all the illegals are voting or something or, you also have to think that therefore it's OK to completely subvert the Constitution over it, which is another step that obviously Thomas and Alito are willing to take. But like. Not everyone's that shameless.

0:31:05 Jenessa: Of course they don't care yeah so I think like if we hit the merits you know I've said this before, but ever since the birthright citizenship one, I've lost all faith in him. Never get over that. Kavanaugh, I'm confused. I don' t know. Why do I think you got Roberts and Barrett on this?

0:31:33 Thomas: Does?

0:31:34 Jenessa: Per curiam, I don t know who wrote it.

0:31:36 Thomas: Oh, oh, gotcha. We don't know the tally because of, yeah, we know a few of them.

0:31:38 Jenessa: We don't know. Well, we know it's 6 -3 because we've got our three dissenters. I have seen everyone just say it's six three.

0:31:46 Thomas: Could be five, four, but one of them, but they didn't sign on to the, yeah.

0:31:49 Jenessa: Just wrote nothing. It's hypothetically possible, but like literally SCOTUSblog is just like 6 -3. They're not even bothering to pretend like somebody might have not had an opinion on this. One One but not both. We have to have five, right? So one but not or both of them signed on to this. One of them could have written it, for all I know. Gorsuch wrote it, if you read it. It's kind of his brand of snotty.

0:32:17 Thomas: I didn't even realize there was all that much to read because normally there's not, right?

0:32:21 Jenessa: It's 10 pages, the majority. These people, I swear to God, the amount of crap I had to read over the last two days, I'm like out of breath from reading. So do they say? It's the reason I think Barrett and Roberts could be convinced by this is because in the normal times, these arguments are not totally bananas.

0:32:46 Jenessa: If you just don't take into account any context whatsoever and think about the fact that we are on a knife's edge of fascism, it's fine. And they're that kind of naive, I think is the issue, is they like a nice textualist little like, well, technically. So basically, what is the argument of the majority? Is no final rule. There's just an executive order. And you don't know. Maybe they'll write a rule that doesn't violate the Constitution. So why should you get an injunction before we get the rule? Can imagine that not being a terrible argument in some scenarios. It's a terrible That wouldn't be illegal. Like my brain and extrapolating one singular step. Say, whoever wrote this, that this is extrapolating multiple steps. At one point they say like, this is assuming they'll even write a rule. I'm dead serious. Why are they filing to get this stay lifted if they don't plan to write a and Sotomayor both point this out that they're like, hey, so you can't argue on the one hand that there is no harm because you might not even write a rule. And then on the other hand, that you have irreparable harm because

0:34:24 Thomas: Seems obvious.

0:34:31 Jenessa: It's that kind of thing all the way throughout. There isn't a final rule yet. And how can we know if that violates the Constitution when I don't even know what the rule is? In isolation, if I just like somehow took my body out of space and time and knew nothing about the country I lived in or anything that had happened in the past 50 years.

0:34:50 Thomas: You're Gandalf and you just beat a Balrog.

0:34:53 Jenessa: Yes, like suddenly I have reappeared and you have to remind me of my own name. That argument doesn't sound terrible. It sounds quite reasonable, actually. But then if you just like warp speed, remind me of any fact about the world. It's like, oh, right. Oh, no, not this. All that. Itself from one paragraph to the next that they are harmed because they want to write a rule. It is that thing that we've been seeing repeatedly of, like, the government is harmed because thing has got to stop. This idea that the government doesn't even have to prove harm, essentially.

0:35:08 Thomas: Ever. Yeah, and we checked and the government isn't Barack Obama, so we care about that.

0:35:38 Jenessa: They just are harmed when they want to do something and they've got an injunction. Like, that's the definition of an injuction. What injunction would not qualify as harm? Under this I can't come up with one so it's a lot of that it's not a snotty like well you don't even know cuz then I can I can I got halfway this is how I know it's Gorsuch because I got halfway through and it's just like I can do this so I know its not Barrett because they're at no point do they say to a dictionary so it is probably not

0:35:38 Thomas: Yeah yeah. Yeah

0:36:13 Jenessa: Barret so have that one what it is, is they sold them on these out -of -context, naive, textualist, it kind of sounds reasonable if you think we don't live in a fascist government, and they desperately want to believe they don't life in a facist takeover because otherwise they have to acknowledge that they're facilitating a facists takeover. It sounds fine.

0:36:39 Jenessa: Sotomayor and Kagan, we get a pretty good response here that is not suffering harm. For example, this idea that they really want to make a list of citizens in each state. First of all, the government knows who the citizens are. They already know who you are and where you live. They're the government.

0:37:01 Thomas: Don't they assign some sort of number to each one?

0:37:06 Jenessa: Yeah, like they already have this list. It's called the IRS. Everybody who's like, oh man, how do they even know? The second you owe four cents in taxes, they know how to track you down. Like how do you think they don't know who you are?

0:37:21 Thomas: Yeah.

0:37:21 Jenessa: You walk into any government building, they This idea, oh, they want to make a list and send it to the state and they're harmed because they got told they couldn't do that. And says the government suffers no harm if it cannot provide that, quote, tool to the states who do not want it and will not use it. Very satisfying. She also says, even as the government represents, it may not implement the executive order at all for purposes of defeating standing. It insists it may seek implement the order immediately for purposes establishing irreparable harm.

0:37:57 Jenessa: Yeah, you can't be doing that. Joined by Kagan, very brief. It's just like you haven't met any of the standards. I don't know. What we're doing here. Goes on for 20 pages, which I would normally complain about, but it was all delicious, so I'm not mad.

0:38:20 Thomas: Wanted to read it myself.

0:38:21 Jenessa: Oh, it's it. It's really, really worth it, so first paragraph is just like summarizing what even happened here. I'll start you with the second just to get us in. This ruling violates well -established precedents concerning this court's equitable discretion and needlessly injects chaos and uncertainty into the upcoming midterm elections. It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election -related challenges.

0:38:58 Thomas: Man, already love that. Mm

0:39:00 Jenessa: What is she talking about there? We have a problem. You remember Purcell? We talked about it. You are too late. Well, now they're telling you you're too early. Have come to me before they made a rule. Too soon, too soon. But now we're going to let them make a rule and this is where Jackson is a genius. She is just shaming these people about you better not Purcell this shit when it comes back here in a month or I'm going to lose my mind because telling them it's too soon. You're only dismissing it because it's too soon. The majority goes out of its way to say, we make no statement whatsoever about the legality. And they say, time will tell whether it's legal. We have no time.

0:39:49 Thomas: Who's to know?

0:39:49 Jenessa: There's no time to tell. They didn't even make an argument about whether it was legal.

0:39:55 Thomas: Charitably, they could be referring to like future elections like it like it won't go into effect for this one. But they could they could evaluate the merits at a later time.

0:40:05 Jenessa: Guess. I mean, it really, just so many assumptions about what won't happen when you've watched these people for, years. This administration has been, I know they were gone for four years, but like, come on. Saying that, why too early. But if we let you put in the role. And then you have to have the rule and try to implement it. And then, you're going to get a preliminary injunction at the lower court. And that's going to take a little while. And, then you're gonna appeal it to the district court and see what they say. And they're gonna peel it to us. We're mean, if we're lucky, we're gonna to be a month before the election. Could be two weeks before the elections. Worst case scenario, it could be during or after. Then what? Honestly, injunction stays in place until after the election, hallelujah. Is not going to relieve it. This court that already enjoined it, the district court that уже enjoined before it was finalized is going to enjoin it again. So really, if it goes to the Supreme Court and they just don't take it until after election, they can punt. If they take it before the election, it's going to be very shortly before. And this is Jackson calling in advance, you better not. Reminding me of, if you remember in Students for Fair Admissions, in the oral arguments, she had this very important point. Saying all this stuff about, like, you can't take race into account in these admissions. Well, I don't understand how it would be fair if a student who is a, you know, legacy, their parents have been here, how they get to write an essay about, oh, my mom went here, my grandma went here and I'd be so proud to go here. But a black student can't write, my grandpa wasn't allowed to go be so proud to go here and break that chain. That's illegal? That can't be right. And of course, Roberts and the majority has to address it and says, well, I mean, of course you can write whatever you want in your personal essay. I mean that's freedom of speech and that wouldn't be fair. I think that's what she's doing here. She is shaming them into If you cannot tell them it is too early and then when they come back to you two weeks before the election because you opened the door, tell them they are too late. Do not do this. Was my immediate concern when I saw these injunctions getting lifted is like, oh, crap, we're going to be so close to the election and they're going have this stupid excuse. So hallelujah, Jackson, getting in front of this for us.

0:41:53 Thomas: Right. Yeah, we'll see if it works. But yeah, yeah.

0:42:47 Jenessa: Hopeful because, again, I think it's not going to, of course, it's that Barrett wrote Watson, like, what was that, a month ago?

0:42:53 Thomas: Which one was Watson?

0:43:03 Jenessa: States control their elections, and no, you cannot be saying election day is this, and therefore, blah, blah. It was like, no, states get to define that stuff, and you guys are making stuff up, and

0:43:17 Thomas: It does. So my question before my concern with this whole thing has been, like I said, they're not going to do this. But why are they doing any of this? Now I'm remembering the birthright citizenship one where I guess that followed the same pattern. Right. Where they kind of let didn't they let the rule go for a little bit, even I think it's just they really are oriented toward wanting to give bad decisions to us and good decisions to them, even if it's a weird temporary procedural thing that doesn't make a lot of sense or ultimately win them anything. They still like to do it or they have the cognitive bias such that they think they've convinced themselves it's some sound logical argument, maybe.

0:44:00 Jenessa: What I'm leaning towards is it be that roberts and barrett feel like well that is a logical argument they haven't written the rule how can I rule on it almost And that both sides is something of like, well, I ruled for the conservatives over here and the liberals over here. And that makes me a better person than everyone else. I am high and mighty. Like, could it be that? I don't know. I obviously, when this gets to the merits, the president has no right to do this. The U .S. Postal Service has no This is obviously interfering in elections. It will, like the D .C. Circuit said, it will be way too close to an election. The Purcell should preserve the status quo, which means you should not implement this at the last second. Should be good on the merits. You should be able to say, like, there's 400 reasons why this is illegal. We get to this injunction, though, I just... Yeah, I think it's that. I think they got to both sides a little, and they got try some silly little side thing?

0:44:08 Thomas: So though, you still don't feel like this. Means the rule's going to go into effect and the post office is going to like not deliver ballots to people. It's so weird. I don't even know how it could practically work.

0:45:31 Jenessa: That's what I'm saying is like think about that for a sec. Just imagine attempting to implement this weeks before the election and either like your state doesn't comply and so they don't deliver any of the ballots. Like there would be a riot. Or your state does comply and like, what, we're going to retroactively try to say they shouldn't have. That's the closest thing I could imagine is like, well, you shouldn't had to, but it's a little bit too late. The cat's out of the bag. Say the U .S. Postal Service is entitled to do this, but also your state is entitled Your state doesn't get its absentee ballots delivered and has to come up with a state post office in the next couple of weeks. Don't put anything past the state of New York. We might figure it out. But I mean rural states, red states that are broke are not going to figure it And I it comes to the administration, they are not people who care about Republican voters. They care about holding power. If this costs one more Democratic vote than it costs Republican votes, good enough. They just want to hold on to power. Why the Supreme Court does this? Yeah, I really just think they convinced Roberts and Barrett that this was like a cutesy little textualist thing to do and the chaos won't be bad enough. Does not agree that

0:46:22 Thomas: That is so weird Yeah. Right.

0:46:57 Jenessa: This is not the most chaotic thing you ever could have done. Give you some of her footnotes here are this is footnote number four from Jackson, not the last by any stretch. It suffices because stay applications turn on harm assessments. If it were otherwise, the applicant could just wait to get a merits ruling from the lower court. A party with no harm from an injunction or with less harm than its opponent. Has no justification for asking this court to involve itself in the pending lower court proceedings. Thus, in my view, a stay applicant seeking our intervention needs to show not only that his interim injury is irreparable but also urgency that immediate relief is required.

0:47:43 Thomas: That's a good point. There's so many reasons this is stupid. You could just let the lower court handle it, right? I mean, they could have just not looked at this.

0:47:51 Jenessa: What she's pointing out here is this is not the first time the question has been asked. The lower court has been asking about this. The circuit court in the middle has been asked about this, why shouldn't just review this de novo. We should take into account the fact they made a ruling.

0:48:09 Thomas: Frustrating.

0:48:10 Jenessa: Really is. This one's delightful. Today's ruling injects additional unknowns into the already fraught pre-election period. Beyond whether the proposed election related rule changes are lawful, one must now wonder whether when the government announces a rule change, a resulting legal challenge is too late, too early, or just right. Of course, only this court knows the answer.

0:48:36 Thomas: Oh, that's so good. Oh, so

0:48:38 Jenessa: She's like peak sass in this one. So pissed off. Voters who disproportionately rely on voting by mail, including those who are elderly or physically disabled, would then be on a knife's edge having to cast their ballots without knowing the results of the litigation churning in the background. This is the problem right here. It doesn't matter at the end of the day what they do. If the goal is to create chaos, obviously it matters because if they go the wrong way, we are in. Absolutely up shit creek without a paddle if they do the right thing they have still just made absolute chaos here and they're freaking people out and that is the goal that's what this administration is doing on purpose and what's so infuriating for her and for all of us is the other judges pretending like they don't notice like pay attention to this please 11. The fact that the president's order was not fully implemented before this suit was filed does not render these plaintiffs' claims non -justiciable. Finality is not a prerequisite to Article 3 standing. Non -final acts can still cause injury. In any event, the plaintiff states are complaining about a, quote, final act. The president has unequivocally issued an allegedly ultra viris and unconstitutional executive order. Directing his subordinates to act in a manner that is causing present and imminent harm, the majority seems to forget that the plaintiff states have not brought an Administrative Procedure Act claim that might logically falter due to a purported lack of finality, and even then, those claims would fail for want of a cause of action, not for justiciability. The court glosses over what we have long said Article 3 standing requires, actual injury, opting instead to rest its conclusion on a brand new, made -up finality barrier for injured plaintiffs who want to have their constitutional claims adjudicated. You're wrong in a hundred ways.

0:50:43 Thomas: Yeah, it's like there's one real justice and it's Justice Jackson. She's like, this is all, here's what's actual reality. Don't know what you idiots are doing.

0:50:47 Jenessa: Like... in what sense is the fact that nobody's made a final rule? They have draft rules, but they haven't made a FINAL rule based on the executive order. But the executive orders final. Why would that matter?

0:51:06 Thomas: Right?

0:51:07 Jenessa: Obvious what they're going to do. They're here telling you, but they're also like here, they make note of, well, the government doesn't say what it's going to with the rule. And it's like, okay, well then how can they be harmed if they don't tell you what they plan to do? How can they know that they're harmed by not doing it?

0:51:29 Thomas: Yeah. Don't get to have it both ways. Oh wait, they do. Sorry. They do get to

0:51:36 Jenessa: Officially name anybody but she basically does uh one more note on this two justices in bost that was a a ruling do you remember this one we talked about this briefly they gave a guy standing to challenge um you guys count ballots after the election I'm harmed as a candidate because I have to pay uh watchers like even longer

0:51:59 Thomas: Yeah, they gave anybody the like standing to challenge an election in a weird way.

0:52:03 Jenessa: Candidate any candidate is harmed by anything you do you

0:52:07 Thomas: Even if they're like one percent have no chance of winning. Wasn't that what it was? It's

0:52:12 Jenessa: Just the election doesn't even have to happen yet you're just a candidate you want to be a candidate screw it whatever like we're all drunk at the wheel I don't know so justices in Bost concluded that a candidate's voluntary spending to guard against the possibility that the challenged rule would impact the election's outcome, a highly speculative risk, counted as a classic pocketbook injury that sufficed to confer Article 3 standing, see citation Barrett concurring in the judgment. This is just like, absolutely, go F yourself, Barrett. Like, ruling embraces but then misapplies the antithesis adopting the court's original principle regarding self -inflicted economic harms. Yeah, you This doesn't make any sense.

0:52:48 Thomas: So obvious to please.

0:53:06 Jenessa: Got one more footnote for you. If so good. If nothing else, rejecting this stay request now would prevent the government from potentially asserting that the Purcell principle bars a new complaint contrary to its current representations. All that has happened, Purcell would be an odd and inequitable fit. Judicial estoppel would plainly preclude it. Judicial estoppel is like once you've said one thing in a case to get yourself out of something, you can't.

0:53:08 Thomas: They're so good. Like they don't get to argue that double that contradiction there.

0:53:38 Jenessa: Exactly. Yes, exactly. If you say right now, no, no we're not going to do that. Please rule in our favor. You can't try to do it later. It cannot logically be the case that the plaintiff states are deemed too early to challenge the executive order's proposed rule change now, but are later denied judicial review on the ground that their subsequent challenges to the order's chaotic prompting of a new mail -in ballot rule comes too close to the election. Those are the last words in this, because that footnote spans two pages onto the last page.

0:54:12 Thomas: Matt's going to love that.

0:54:14 Jenessa: In this way, the final true paragraph. In any event, this court should not have gone out of its way to error correct the district court's purported misapplication of our standing and ripeness doctrines, especially given the government's abject failure to defend the executive's underlying legal authority and all that is at stake in disputes involving last -minute challenges to election rules. When the government's obvious goal is to interfere with the plaintiff's state's practices and prerogatives in a manner that the Constitution does not authorize, it is both a serious legal error and a grave misuse of our equitable emergency powers to let the executive proceed even one step further. End. No sign -off. No respectfully dissent. Just I'm done.

0:55:03 Thomas: I mean, it's shadow docket, so I guess you don't have to because you don' t even know who you're disagreeing with or why.

0:55:05 Jenessa: Why would I? No, she has no idea. Oh my God. This is not a close call, she says.

0:55:16 Thomas: Yep. Not at all. Man, she's the best.

0:55:19 Jenessa: It's really good. I highly recommend reading it. It to my petty soul. It really got out all of the feelings I was having about this.

0:55:29 Thomas: Yeah, except it's not petty. It's like they're doing a horrific thing and she's only one being sane about it. I mean I guess there's other descents, but were they not quite as good?

0:55:41 Jenessa: Sotomayor's dissent is quite good. It's four pages. I read you the highlights of it. And I think it just it hammers down on you didn't meet the standard. You didn't beat the standard, you didn't meet this standard, and therefore we should not have done this. Jackson is the one who is saying, hey, wake up and look at the fact that we're plunging off a fascist cliff not just that we have not met the standards um lot of like calling out individually like you wrote this and this decision and you wrote that and that decision and I don't know how you're reconciling this um very specifically going out of her way to cite like concurrence over here. You don't have to cite the concurrence, but it's like I'm calling you out for the fact that you wrote this and now you're signing that. What are you doing? It's very thorough. And I think ultimately.

0:55:45 Thomas: Good.

0:56:37 Jenessa: Yeah, the most chicken shit thing they could do, which makes me think it's what Roberts will do, would be to let the lower court put in an injunction again now that the rule is finalized and just do nothing for two months, which would be quite reasonable given that if we were thinking normal docket speed. For you to get a temporary restraining order, I mean, that could come out today or tomorrow. And then they won't get a preliminary injunction for like, you know, a week, two weeks, something like that. And they'll have to, if they wanted to appeal it, they would appeal it to the First Circuit and they would have to brief it and argue it and wait for a decision. They could very easily punt this until after the election. Would be the scenario, I think, because literally, if we can just make it to these midterms without them messing around, truly, I mean, the numbers are phenomenal right now. It's looking good. We just got to get through and which statistically speaking at this time when we're like about this far out, the polling is usually pretty accurate, especially that like generic ballot poll. You planning to vote Democrat or Republican does at this type of year usually does a pretty good job of predicting the overall numbers in the House because it's a generic poll predicting a generic thing rather than any one race. It's usually pretty good, and I just saw an analysis that was like, hey, so normally here's like a linear regression that shows just how good this is on this date, like by this time of year, and like it's off the charts for right now how good that this should be. Good enough to possibly get the Senate, which is nuts when you think about how biased the Senate map is, just inherently in

0:57:44 Thomas: We just have to hope the election corresponds to the polling somehow. Yeah,

0:58:40 Jenessa: Favoring rural areas.

0:58:40 Thomas: We can do it. We could do it we could. We

0:58:43 Jenessa: Just got to make it to the end of this, it will be a big deal if even just the House, if a bill can't make it out of the House that would get signed by Trump, that is huge.

0:58:45 Thomas: Got to make it happen. Yep. Yeah the house is important. Oversight and trying to do a better job of make Trump making Trump look even worse for the last two years and then hopefully using that as momentum into the the general and 20, whatever the hell she got 2028.

0:59:08 Jenessa: 2028.

0:59:09 Thomas: What are we at? Yeah. Well, for the breakdown of this. I was a little pretty nervous when I read that, but I, the way you've explained it makes sense. Um, I mean the way that what they did makes no sense, but, I just want to thank, uh, justice Jackson for being the one true justice. And so to my, or, you there's two true justices and Kagan sometimes, but. Sense. So we'll definitely be on this. If there's any really important updates, I'm sure we'll be right on the mic to bring it to everybody.

0:59:10 Jenessa: Eyes on the prize, survival mode. No. be watching.

0:59:39 Thomas: So much.

0:59:44 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon .com slash law. Contact us through Patreon or openarguments at gmail .com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

1:00:16 Jenessa: And Thomas want to plunge us into a fascist hellscape.

1:00:20 Thomas: Sure. Granted.

1:00:22 Jenessa: Got my mic right in front of my little clicky bar.

1:00:26 Thomas: So we don't have to do the episode. School's out.

1:00:30 Thomas: You're Gandalf and you just beat a Balrog.