The Supreme Court ruling against Trump on mail-in ballots--and what it means

Trump slammed the three justices he appointed after a major loss in his effort to exert control over the election. But he’s not giving up on cheating in the 2026 midterms.

The Supreme Court ruled last night in what seems to be an effective 7-2 decision against Donald Trump’s attempt to use the Postal Service to regulate mail-in ballots. It was a brief unsigned order on the emergency docket, in which the court said the government was unlikely to prevail in its challenge to the lower court’s preliminary injunction as the case proceeds.

Justice Brett Kavanaugh wrote a concurring opinion that appears like an attempt to stay in the MAGA club while doing the only sane thing on this issue: He said there was a “fair” chance the Postal Service’s rule was within its statutory authority, but that it was far too close to the election to allow the rule to proceed. Justice Samuel Alito wrote a dissent much longer than the majority opinion, joined by Clarence Thomas, which offered several reasons why the administration should be allowed to move forward with the Postal Service rule.

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It means that for 2026, Trump is screwed on this issue while he’s still trying other ways to affect the election. He lashed out this morning at the three justices he appointed: Kavanaugh, Amy Coney Barrett and Neil Gorsuch.

These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves.

It is a big loss for Republicans, and America itself, and makes cheating by the Radical Left ‘Dumocrats,’ on Mail-In Ballots, a much easier thing to do - And now they have an open field to do so!

This was pretty rich, as Trump’s three justices have given him massive latitude to carry out policies that lower courts had blocked, in case after case. But these kinds of ad hominem attacks are what Trump does when he doesn’t get the outcome he wants. And clearly Kavanaugh’s attempt to leave the door open to the administration’s legal argument didn’t spare him a nasty barb from Trump on Truth Social. Trump, of course, praised Alito and Thomas as “legends both.”

A huge psychological and political blow for Trump

This decision was obviously a big blow for Trump as Republicans face the possibility of major losses and his administration faces investigations if Democrats take one or both chambers of Congress. Ever the authoritarian, Trump has tried to exert more federal control over elections via executive action, while courts have repeatedly pointed to the Constitution’s allocation of election administration to the states, subject only to Congress’s authority.

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But it’s also a big psychological and political blow as well. As many legal analysts have observed, including Slate’s Mark Joseph Stern, who comes on my SiriusXM program, the administration has been very careful about what it brings up to the Supreme Court. Not every case it loses in the lower courts is appealed, as administration lawyers have reason to be wary of creating adverse Supreme Court precedent. And overall, they don’t want the very conservative court to be perceived by the public as repeatedly blocking Trump and thus looking even remotely “fair.”

So they often take to the Court cases they believe they have a real shot at winning, and they’ve had enormous success on the emergency docket. Since the beginning of Trump’s second term, they’ve prevailed in the majority of the 30 or so emergency-docket rulings.

When the Supreme Court in recent weeks lifted holds put in place by the lower courts on Trump’s mail-ballot order—reasoning that the administration hadn’t acted yet and thus the challenges were premature—the administration was clearly emboldened. This is a court that has often ruled in Trump’s favor on the emergency docket and, when it hasn’t, more often then not finds ways to punt on a final decision rather than resolve the underlying issue.

But now the administration did act on the order, and the court faced the issue again. This time it said no. The court did something similar with Trump’s effort to deploy the National Guard in the Chicago area—after initially confronting procedural questions—and on Trump’s major tariffs, after allowing the tariffs to remain in place while the case proceeded before ultimately striking them down.

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The Trump regime’s lawyers try to play it cool, but sometimes they overreach, and this was one of those times. And for Trump, again, it’s the psychological blow of losing, as well as the political blow—having the Supreme Court slap him down weeks before an election, and on an attempt to affect the vote itself.

Alito and Thomas will let Trump shoot somebody on Fifth Avenue

The decision also showed us that Alito and Thomas appear willing to let Trump do whatever he wants—and Kavanaugh often leaves the door open to his legal arguments. I’m not a legal expert—but I speak to many of them on the radio. The constitutional structure here is important: States administer elections under the Elections Clause, while Congress has authority to alter certain rules for federal elections. The executive branch does not possess any power to administer elections.

Alito tried to argue that some of the states and other plaintiffs suing didn’t have standing, while also arguing that the Postal Service had statutory authority for the rule. The states, meanwhile, argued that the federal rule interfered with their election administration and threatened to disenfranchise voters.

We’ve seen this divide among the justices before. On the 6-3 tariffs decision Kavanaugh joined Alito and Thomas in dissent. On the court’s birthright citizenship decision—another blow to Trump—Kavanaugh provided the sixth vote for the outcome but disagreed with the majority’s constitutional reasoning. He concluded that Trump’s order violated federal law while arguing that the Constitution itself would permit Congress to restrict birthright citizenship.

Kavanaugh was therefore accused by critics of leaving open another route to restricting birthright citizenship, and he is clearly leaving the door open here as well on mail-in ballots.

This is not the end

So on the issue of these mail-in ballot restrictions, while they’re dead for 2026, the legal fight will be back for 2028. It’s not entirely clear what Gorsuch, Barrett and Roberts would do on the ultimate merits, as they didn’t sign their names to separate opinions and the majority order didn’t say much. The Court’s statement that the government is “unlikely to succeed on the merits” is significant, however, and goes beyond merely saying the rule came too late for this election.

But I wouldn’t trust any of these conservatives on the court, not with their histories on other cases. And surely, we need to remain steadfast on the issue of court reform and expanding the court.

Regarding 2026, while this attempt to stop mail-in ballots is over, there are other efforts underway that Trump has been pushing hard on.

The Justice Department sent threatening letters just last week to election officials across the country, demanding that states preserve election records as the department continues seeking access to detailed voter information.

The Department of Homeland Security has sent employees across the country to investigate people it suspects may be noncitizens registered to vote—though there’s no evidence of widespread noncitizen voting. Markwayne Mullin, the DHS secretary, wrote a letter to the attorney general, asking the Justice Department to examine whether voting systems that use barcodes or QR codes comply with federal requirements for a voter-verifiable paper record and manual audits.

And let’s not forget that all of these efforts, including the now-failed attempt to get the Supreme Court to allow Trump to control mail-in ballots, are meant to cast doubt on elections and confuse people, with the goal of suppressing the vote. So everyone needs to stay alert, make sure people have faith in the system, and get out the vote.