As James Joyner noted, the US Supreme Court has halted (at least for now) the Trump administration’s executive order to put in place a hastily constructed, ramshackle process to use the US Postal Service to potentially disenfranchise millions of voters. While it was obvious to me from the get-go that the proposed EO was unconstitutional (among other problems), I was not entirely confident that the Court would see fit to block it at this time. I had some hope that when push came to shove, Roberts and Coney-Barret, at least, would recognize the chaos that would have been unleashed.

As it turns out, only Alito and Thomas dissented, although Kavanaugh (like with the birthright citizenship case) concurred with the majority in the weakest of ways. Like with that case, I am left wondering if these three can read.

One thing that I do not wonder, in the least, is whether Alito and Thomas are authoritarian hacks, because clearly they are. As law professor Rick Hasen notes:

 the voters make no appearance whatsoever in Justice Alito’s reasoning. He, like the government, does not dispute that using the rule in 2026 would disenfranchise millions of our most vulnerable people. He doesn’t care. It’s despicable and antidemocratic.

Fortunately, Justice Alito’s attempt today to further contract voting rights had only one other taker. That’s good news for American democracy and the rule of law.

Indeed, note the following from Alito’s dissent:

The Government will suffer irreparable harm absent relief. “Because reversal of the District Court’s [injunction] would come too late for the 2026 midterms, the District Court’s errors deal a serious setback to the Executive’s goals while this litigation unfolds.”

The harm in question is that the EO will not be able to be enforced. And “the Government” here is really just the President, as Congress (you know, the branch with the constitutional authority over the issue at hand) has not weighed in anew on this issue. (I realize, by the way, that “the Government” is a party to the case, but my more philosophical/constitutional point still stands).

As Hasen correctly notes, Alito seems not the least bit interested in harm to the voters.

There is also a good deal of hand-waving by Alito about standing in the dissent. I am not a legal expert, but as best I can tell, the entire standing issue can be rather easily manipulated depending on the preferences of the given Justice. Indeed, Jack Balkin (an actual legal expert) noted the following almost 20 years ago (emphases mine):

Standing doctrine is among the most unprincipled and arbitrary parts of American constitutional law. The Supreme Court has expanded and contracted standing requirements repeatedly over the years in order to accommodate cases that a majority of Justices want to hear or would rather shut down. Even though standing is analytically distinct from considerations of the merits of the plaintiff’s cause of action, standing decisions have often reflected a majority of the Court’s views on the merits.

The post also makes this interesting observation:

Nor are the positions of the two newest Justices– Chief Justice Roberts and Justice Alito– at all surprising. Bush appointed them to the Supreme Court to promote and protect executive power. The scope of standing is inversely correlated to how free a hand executive agencies enjoy.

[…]

It will be interesting to see whether Roberts’ and Alito’s enthusiasm for executive power in all of its forms continues if and when the Democrats regain the White House, or if a standing question is presented where the plaintiffs raise substantive issues they care deeply about. My guess is that they will prove to be relatively consistent in their support of both executive power and limited standing, but I recognize that history tells a different story. In the past the Court’s conservatives have expanded or disregarded standing requirements to take cases challenging affirmative action programs and voting redistricting decisions. Neither conservatives nor liberals have been very consistent when it comes to standing, but that is because, despite all the theorizing it has generated, standing doctrine was never designed to be consistent.

Some things have not changed.

Let me conclude by noting that we have, thankfully, successfully avoided what could have been the actual collapse of democracy in the United States.

This is not hyperbole on my part.

If we had gone into the midterm cycle with a flimsy system that had the very real potential to reject tens of thousands, if not millions, of ballots, thus calling into question the democratic outcomes of the elections, we would have found ourselves in a position of not having a legitimately elected Congress for the first time in our history.

It would have been an utter disaster.

I will state that there is also something profoundly wrong with our court system insofar as we lack a process whereby blatantly unconstitutional acts are not being treated as such. Instead, we nibble around the corners of a problem, arguing about standing, ripeness, and the like. I get the general idea that our system tries to deal with statutory and other issues before leaping to the text of the Constitution, but sometimes it seems to me that when the executive is trying to usurp power that is clearly in the domain of the legislative branch, the judiciary should just say so.