On August 24, the Supreme Court cleared the way for President Trump’s election order to take effect before the November midterms. It did so without deciding whether the order is legal.<\/p>\n\n\n\n
The majority said the 23 states and the District of Columbia that sued had come to court too early. Because the order had not yet forced them to do anything, they had no injury a federal court could fix. Whether the order is constitutional, the Court wrote, is a question for another day. Justice Ketanji Brown Jackson, in dissent, put the situation plainly: no judge or justice anywhere has held that the order complies with the Constitution.<\/p>\n\n\n\n
So the question of whether a president can reshape how states run mail-in voting now sits outside the courts. It sits with state election officials deciding whether to use the federal government’s citizenship lists. It sits with Congress. And it sits with the voters who will go to the polls in nine weeks.<\/p>\n\n\n\n
That is not a breakdown. That is the constitutional order working the way it was designed to work. The Constitution belongs to the people who ratified it, and the people, not nine justices, hold the final word on what it means.<\/p>\n\n\n\n
Executive Order 14399, signed March 31, does three things that matter here. It tells the Department of Homeland Security to compile lists of citizens in each state and send them to election officials. It tells the Attorney General to prioritize prosecuting officials who issue ballots to ineligible voters. And it tells the Postal Service to begin writing rules that would require new envelope markings on mail ballots and would let the Postal Service refuse to carry ballots from voters not on a state-submitted list.<\/p>\n\n\n\n
A federal judge in Massachusetts blocked sections of the order in June, finding it intruded on the states’ constitutional authority to run elections. The First Circuit refused to lift that block. On August 24, the Supreme Court did lift it, ruling that the states lacked standing (a concrete harm the court can remedy) and that the case was not ripe (the harm depended on future events that might not happen).<\/p>\n\n\n\n
Two dissents followed. Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote that the decision does nothing but delay the real fight. Justice Jackson went further, calling the ruling a distortion of the Court’s own precedents that injects chaos into an election already underway.<\/p>\n\n\n\n
The majority did not disagree about the stakes. It simply declined to answer. “On that score,” the Court wrote, “time will tell.”<\/p>\n\n\n\n
Here is where we need to separate two ideas that get mashed together in civics class.<\/p>\n\n\n\n
The first is judicial review: the power of courts to decide whether a law violates the Constitution in a case before them. Chief Justice John Marshall established it in Marbury v. Madison in 1803, writing that it is “emphatically the province and duty of the judicial department to say what the law is.” We accept judicial review. It is real and it is legitimate.<\/p>\n\n\n\n
The second idea is judicial supremacy: the claim that when the Supreme Court interprets the Constitution, its reading binds every branch of government and every citizen as the final and only meaning. That is a different claim, a much larger one, and for most of American history the country rejected it.<\/p>\n\n\n\n
Thomas Jefferson called the notion that judges were the ultimate arbiters of constitutional questions “a very dangerous doctrine indeed.” He knew, he wrote in 1820, of no safe depository of the ultimate powers of society “but the people themselves.”<\/p>\n\n\n\n
Andrew Jackson acted on that view. The Supreme Court had upheld the Bank of the United States in 1819. Jackson vetoed its recharter in 1832 anyway, telling the Senate that the Court’s opinion “has no more authority over Congress than the opinion of Congress has over the judges.” Then he took the question to the voters and won reelection.<\/p>\n\n\n\n
Abraham Lincoln, in his First Inaugural, confronted the Dred Scott decision directly. If national policy on vital questions were to be “irrevocably fixed” by the Supreme Court, he said, “the people will have ceased to be their own rulers.”<\/p>\n\n\n\n
As legal historian Larry Kramer has shown, this was not a fringe position. It was the founding generation’s understanding. The Constitution was popular law, enforced by the people through elections, juries, petitions, and political pressure, with courts as one voice among several.<\/p>\n\n\n\n
The Court did not claim final authority for itself until 1958. In Cooper v. Aaron, facing Arkansas’s defiance of school desegregation, all nine justices signed an opinion declaring that “the federal judiciary is supreme in the exposition of the law of the Constitution.” They attributed that principle to Marbury. Marbury says no such thing.<\/p>\n\n\n\n
Cooper stuck because the country accepted it. The cause was righteous. Nobody wanted to be on Governor Faubus’s side. And so a habit hardened into what most Americans now assume is a rule.<\/p>\n\n\n\n
Defenders of judicial supremacy make three serious arguments, and they deserve a real answer.<\/p>\n\n\n\n
First, settlement. Legal scholars Larry Alexander and Frederick Schauer argue that a constitution’s main job is to settle disputes, and settlement requires one authoritative interpreter. Without it, every constitutional question stays open forever.<\/p>\n\n\n\n
But the Court does not settle questions. It overturned Roe v. Wade after 49 years. It reversed Plessy after 58. What actually settles a constitutional question is public acceptance, which the Court can earn but cannot command. Elections and amendments are the settlement mechanisms the Constitution provides.<\/p>\n\n\n\n
Second, minority rights. Erwin Chemerinsky, dean of Berkeley Law, argues that courts insulated from majorities are the only reliable protection for those majorities would trample. Cooper is the proof: without supremacy, Little Rock stays segregated.<\/p>\n\n\n\n
Yet the Court’s word alone integrated nothing. Brown was decided in 1954. Central High was integrated in 1957 by the 101st Airborne, sent by an elected president. Segregation across the South fell to the Civil Rights Act of 1964, passed by an elected Congress under pressure from a mass movement. The people did that work. The Court’s opinion in Cooper came after the crisis was largely over.<\/p>\n\n\n\n
Third, the rule of law. If officials can ignore rulings they dislike, critics warn, the law means whatever the powerful say it means.<\/p>\n\n\n\n
This conflates two things. A court’s judgment in a specific case binds the parties to that case. A governor who defies a court order he lost has broken the law, and we say so. What we reject is the further claim that the Court’s reasoning binds everyone else, forever, on every related question. A Congress that passes a law it believes constitutional, a president who vetoes one he believes is not, and voters who elect people to change the Court’s composition are not lawbreakers. They are participants.<\/p>\n\n\n\n
A Marquette Law School poll released in early August found that 54 percent of Americans believe the Court is going out of its way to avoid issuing a ruling the president might refuse to obey. Gallup’s July survey put the Court’s approval at 33 percent, the lowest in 26 years of tracking.<\/p>\n\n\n\n
Read those numbers together. The public suspects the Court is calculating what it can enforce. The Court’s own decision in Trump v. California, declining to rule and pushing the question back into politics, does nothing to dispel that suspicion.<\/p>\n\n\n\n
This is not a scandal. It is a confession. The Court’s authority has always rested on acceptance, not on the text of Article III. Supremacy is a habit the country fell into, and habits can be broken.<\/p>\n\n\n\n
The election order does not require any state to use the citizenship lists. State officials can decline, and 23 states already have. If the Postal Service finalizes its ballot rule, the states can sue again, and this time the Court has told them the case will be ripe. Congress can legislate on federal election standards, a power Article I explicitly grants it. And on November 3, voters will decide who controls the House and Senate that would do so.<\/p>\n\n\n\n
None of those actors need permission from the Court. The Court will have its say, eventually, on the merits. It will not have the last word.<\/p>\n\n\n\n
That belongs to us. It always has.<\/p>\n\n\n\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
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