But the court’s ruling did not touch the substance of Trump’s order or anything that the affected agencies might do pursuant to his order. Instead, the Supreme Court ruled that the district court had acted prematurely. The issues were supposedly not yet “ripe” for a decision.

Here’s what Justice Sotomayor said in her dissent:

“Today’s decision does not address whether the President attempts to interfere with State’s administration of the November 2026 elections are lawful. Nor does it suggest that the Executive Branch has any constitutional or statutory authority to implement the President’s directives.”

Justice Sotomayor is absolutely right. In a very real legal sense, the Supreme Court decided nothing at all substantively. Trump’s executive order was “just” an “internal directive from the President to his subordinates mandating that certain agencies pursue certain policies. It neither requires nor forbids anything of anyone outside the Executive Branch.” What might happen as a result of the executive order was unknown, they reasoned.

The States who were the plaintiffs in the case argued that was nonsense. Whatever the agencies might do in furtherance of Trump’s order would inevitably cause a massive quandary about how to handle midterm elections that were just a little over two months away. The majority blew those concerns off without any remotely plausible justification.

For now then: Everything that was at issue before the court’s ruling is still at issue. First is the DHS sharing of “citizenship lists” with the States with the supposed goal of removing non-citizens from State voter lists. And second is the Postal Service’s refusal to deliver ballots to voters, or return them from voters, if they are not on State lists approved by the federal government.

The USPS final rule, which was issued Friday August 21, still cannot go into effect because it is under an injunction in another case in the Massachusetts federal court. Unless that order is vacated on appeal by the first circuit or vacated on an emergency application to the Supreme Court, the USPS rule is dead for now. You will be hearing a lot about that case in the next few days and weeks. It’s titled League of Women Voters et al. vs. Trump et. al.

The big question, of course, is what will the Supreme Court say when it rules on the merits when those are before it, which will likely be soon on another emergency motion.

The law is very clear. What Trump’s order directs and what the affected agencies are trying to do are plainly illegal. The Constitution explicitly gives the power to conduct federal elections to the States except to the extent Congress has passed legislation to impose other requirements. There is no authority for the president or the executive branch of government to impose any additional requirements on the manner of conducting elections. If Congress had passed a law, like the Save Act, for example, the executive branch might have some authority to implement that act with the kind of anti-voter actions Trump wants to impose. But the SAVE Act didn’t pass nor is there any other federal statute that gives Trump the power to do what he is trying to do through the DHS and USPS.

I recognize, of course, that today what the law dictates is not necessarily what the Supreme Court says it dictates. So, what can we glean from the Supreme Court’s decision on Monday as a harbinger of what it will do when the merits are before it?

There are all kind of reasons why judges don’t rule on the merits of a case, reasons that vary from strategic to personal. Sometimes judges don’t issue a ruling because they believe the issue will go away if they don’t rule, but that seems inconceivable in this case.

A more likely possibility is that the six justices couldn’t agree on a single, coherent rationale for a substantive ruling on the motion, so they agreed on this way of punting the case for a few weeks in the hope of coming to a single agreed ruling based on a more complete factual record. The issues before the court on Monday included a lot of hypotheticals about what could happen - “speculation” as the court put it - if and when the executive order was actually implemented by final rules.

A more cynical and extremely dangerous, but certainly plausible, reason why the court ruled as it did is what Justice Jackson points out in her dissent. In the 2006 case called Purcell v. Gonzales, the court fabricated a new rule to block plaintiffs bringing civil rights cases against discriminatory voting practices. Purcell said that a lower court should not grant relief against illegal election practices if an election was on the horizon (which is always the case, of course, depending on your vision!). The court said it was better to let an illegal election go forward than potentially “disrupt” the election process by correcting whatever was illegal.

That was a ridiculous rule designed to keep plaintiffs from getting relief after they have proven illegality. I can tell you from my own experience, courts used to successfully implement new election plans immediately after a court order and shortly before an election, and they were administered without a problem. That was before the current era of ultra-conservative rulings from the Supreme Court.

Justice Jackson’s concern is that, in a future ruling on the same issues that were before the court Monday, the six justices will pull the Purcell rule out to say it’s now too late and too close to the elections to enjoin the new federal rules! You’re thinking that would make no sense because the federal rules themselves are what cause the disruption, not an injunction against the rules. You’re right! But the court has refused to apply the Purcell rule in exactly that kind of situation where the conservative justices favored the new, last-minute election plan and wanted it implemented regardless of “confusion.”

As Justice Jackson wrote:

“[Monday’s ruling] lets another shoe drop in the Kafkaesque nightmare that our precedents had been steadily creating for certain plaintiffs who seek to bring election-related challenges. The Court has held for a while now that even valid election-related legal claims can come too late. Today’s revelation is that such claims can also come too early—never mind that an election is looming and related harms are presently occurring. Never mind, too, that the Government (which controls the timing of proposed and final rules) can easily game the system.”

Justice Jackson, unfortunately, is spot on. While it would be the utmost cynicism if the court passed on a substantive ruling now with the thought that it will pass again later and rule that it’s then “too late”. Trump would be allowed to do what he wants and overrule state authority, but the Supreme Court would have avoided ruling that what he did was legal! I wish we could say that level of disingenuousness is beneath the court.

In any event, we should know soon the court’s real reason for ruling as it did!

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