Strict Scrutiny - BREAKING: SCOTUS Blocks Trump's Mail-In Ballot BS

Episode Date: September 15, 2026

Kate, Leah and Melissa hop on to break down the Supreme Court’s decision to block the Trump administration’s Postal Service regulation announcing it would not deliver mail-in ballots unless states adopted a bunch of last-minute, unnecessary, burdensome, and impossible policies governing mail in ballots. They cover Trump’s tantrum over the decision, Brett Kavanaugh’s endlessly pathetic pick-me energy, and Sam Alito’s God tier false equivalencies.Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book,The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. and we need you to amplify their voices before the Supreme Court gets its hands on this case. We've already talked about on the podcast how the Fifth Circuit decision allowing this practice was total BS. I mean, it had to liken the Ten Commandments to basically like a poster, almost suggesting, oh, what, you triggered Libs? But the reality is there's a human cost of Christian nationalist policies like these Ten Commandments laws, as well as the decisions the Supreme Court hands down.

Public schools are supposed to be accessible to all. They're not supposed to be instructing on the state's preferred religion or the state's edited version of scripture. Visit AU.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. Mr. Chief Justice, please support. It's an old joke. But when I argue, man, I argues against two beautiful ladies like this, they're going to have the last word. she spoke not elegantly but with unmistakable clarity she said i ask no favor for my sex all i ask of our brethren is that they take their feet or for next it is the ladies of strict scrutiny coming to you with a quick morning after analysis of the supreme court's decision to block the trump administration's postal service regulation announcing that the postal service did not want to deliver mail and ballots unless states adopted a bunch of last minute, unnecessary, very burdensome, and likely impossible to meet

policies governing mail-in ballots. Okay, so the top line most important thing to know in terms of the upcoming critical midterm elections is this. It is now crystal clear that under the law, the Trump administration cannot interfere with absentee voting via the Postal Service. That means if your state allows you to vote by mail, you will be able to do so consistent with your state's rules, regardless of the Trump administration's diabolical efforts to the contrary. The Supreme Court told the administration that it cannot use the Postal Service to steal or rig an election by throwing out thousands of ballots and disenfranchising people. I'm just going to say, right answer, took a long time to get there. Specifically, the court declined to issue a stay,

which is a pause of the lower court's ruling that had invalidated the Postal Service's regulation. So we're going to spend a little bit of time analyzing what the court did, which is going to involve a fair bit of mocking Brett Kavanaugh, the most pathetic and needy pick-me justice who may have ever lived. And then Sam Alito and Clarence Thomas, who took their adult, pickled, Fox News consuming right-wing Manosphere, podcast listening brains, two new lows. In addition to all of that, just wanted to emphasize, do not congratulate. Do not give the Supreme Court credit for telling Donald Trump that he, He doesn't have the power to rig an election in the sloppiest, most chaotic, wildly illegal, last-minute dash way possible. Shorter, Leah, do not give the Supreme Court credit for finally deciding to crack open their copies of the Constitution and read the elections clause. Okay. Just to remind you all, the other reason you ought not congratulate the Supreme Court is because

this is the same court that just a few months ago killed Section 2 of the Voting Rights Act and cleared the way for a little. unprecedented completely unorthodox mid-cycling redistricting, where Republicans are authorized and indeed encouraged to cheat democracy and erase the political power of Democratic voters and black voters in particular. This is the same court that just a few weeks ago opted not to block the underlying executive order, the same one that announced Donald Trump's plans to try and interfere with this election, including using the U.S. Postal Service to do so. And then just kind of strung us along for these valuable days, as the election drew ever near, as we all wondered, are we really going to have an election that works in any meaningful way or not? And luckily, the answer for now is yes, we will. But the court is again kind of crowning itself the ultimate decider of that critical democratic question. And just to elaborate on what Melissa was just saying, it is because of the earlier Supreme Court decision that the only thing that is blocked right now is the Postal Service Regulation announcing plans to decline to deliver batches.

of ballots. Other portions of the lawless executive order are actually not blocked, including the portions of the executive order threatening to investigate and prosecute state and local election officials who allow individuals to vote whom the administration believes are actually not authorized to vote. This could still chill election officials' implementation of their own election rules, and that is on the Supreme Court. And the only reason we are still even having to talk about how will this midterm operate? will it actually proceed is because the Supreme Court declined to block the executive order at a time when some states had already begun to allow people to vote. So let's break down the order that the court issued late Monday night.

In just a couple of sentences, the Supreme Court order gave two reasons for why the lower court could block the Postal Service regulation, or at least why the Supreme Court wouldn't disturb that lower court order. First, the Supreme Court's order said the government is, quote, unlikely to succeed on the merits. That is, a majority of justices seem to be of the correct view that the Postal Service does not, in fact, have the authority to engage in mass disenfranchisement efforts that would supplant state election rules. Second, the Supreme Court's order said the, quote, equitable factors do not favor the government. Equitable factors include things such as whether the party seeking relief from the court, here the federal government, is likely to suffer irreparable harm and how the other parties might be harmed as well. All right. So that was the majority order, and it was very short, very spare. What wasn't spare were some of the separate opinions. And I just want to say, as a pro tip to everyone out there listening, shutting up is free. Saying and writing nothing beyond that is free and costless. So whenever possible, err on the side of efficiency and just shut the fuck up. And not letting your whole ass hang out. that part. But again, proving that it's never the right course to not let your whole ass hang out. And proving that his appointment was never going to be free or costless for most of us, Brett Kavanaugh decided to weigh in anyway.

And again, with real cost to all of us who have to read what he had to say, Justice Kavanaugh decided that he was going to make it very clear that he actually does think that the president can use the postal service to wipe out state rules regarding. mail and ballots just can't do it right now. Right. So this is what Kavanaugh wrote. Quote, there is at least a fair prospect that the final rule falls within the Postal Services statutory authority. But he said that applying the rule now isn't justifiable because election officials will not have enough time to grapple with it. Shorter, Brett Kavanaugh, I would still really like to be Chief Justice, Mr. Trump. So while this is a... No, do it the right way. I would still like to be Chief Justice. this, Mr. Trump, please.

Only you can do it that way, Melissa. I can't do that. Just pick me? So while it's a 7-2 decision on the bottom line of whether to disturb the lower court's injunction blocking the Postal Service regulation with only Thomas and Alito noting their dissents, Kavanaugh's concurrence signals that he's probably going to rule in Trump's favor if this issue comes up before the 2028 election with more lead time. So I think it's probably better to think of this as a six to three majority.

So thankfully, looking on obviously the bright side here, Gorsuch and Barrett do not join this concurrence, which hopefully means they are on board with the idea that this rule is illegal, not just now, but in general. Not sure I would totally take that to the bank, but that at least is how I am going to optimistically construe their failure to join this concurrence. The bar is an hell, Kate. And also, I know, it's there. But they also, I think, and this is obviously critical, don't join the unhinged Alito Thomas dissent, which we are going to. to go deep on in a moment. Because they have dignity, Kate. They still have some shards of dignity. I think that shame maybe still has some power for them. That I think is important. And also, I think they are at least somewhat even if tenuously connected to reality, which I think means

they realize that the court would own the absolute chaos around this election that would ensue if, in fact, they decided to let Trump move forward with this order and this regulation. So I guess the best read here is that however on board they are, and I think it's enthusiastically on board with the dismantling of the Voting Rights Act, the destruction of real multiracial democracy, they're not fully on board with this sort of blatant election interference. I just want to add late breaking. We got a true social post from the president reacting to this. Oh, really since we sat down. Oh, yeah. In which he refers to Thomas and Alito as, quote, legends both.

of his appointees. That's a T-shirt. That is a T-shirt. We got to get that T-shirt for ourselves. Of the justices he appointed who ruled against him, he says, quote, these are not the people I interviewed to serve on the United States Supreme Court. They are merely a shell of their original. They've been body-satched.

He goes into the terrorist ruling that is causing all of this expense, as well as this election ruling that is destroying America. Wait, Brett doesn't even get an add-a-boy for the concurrence? He does not. Oh, my God. And then pick me. And then I know, you have to know that Brett Kavanaugh is just fucking crying himself. Absolutely.

You know, in his pillow right now. With him. Brett Kavanaugh with Arthur the Ard-Vark fists right now. Oh. And the president closes with this, quote, it is not easy for me to write this criticism of the United States Supreme Court. It will likely cost me dearly for years to come. come, sir, if only.

Wow. We're breaking news on this recording, ladies. I love this breaking news because, like, let's just be honest. Like, the Supreme Court nominally gave him a loss, but this whole thing has taken so much time. It's so much chaos. I'm sure that the chaos itself is by itself a suppressive action. Like, there be people are like, do I even need to vote? like, should I vote? There's so many questions. Like, the court has given him a huge assist,

even if ultimately this is a formal law. So my guy, like, take the W. Like, you got a W and someone even entertaining this absolute nonsense. Well, and I think that's part of the sort of back to the kind of pragmatic sort of effect here. Yes, this should mean that people are able to vote in the way that they always have in their states. But yeah, I really do worry about all of the uncertainty that has hung around voting by mail in recent weeks because of Trump and because of SCOTUS may mean that people are confused and scared and don't vote by mail. So it's really important there would be a full court press to get the word out that Trump has failed here and you get to vote the way that you voted before he tried to put this executive

order into place. Thank you for that PSA. Let's go back to our originally scheduled programming, which involves dragging Brett Kavanaugh. I got to talk to you about this CAVC currents, right? I think Coach K is branching out on his Cav currents vibes, right? So this particular CAVC currants is doing something that Brett Kavanaugh did in the Birthright Citizenship case. So do you remember when he wrote his concurrence in birthright citizenship?

It was like, I'm ruling against you, Daddy Trump, but don't worry, I'm still preserving the option for you to later do some totally illegal shit, right? I want you to be able to do that. So this is the same vibe here. He is basically like, we're not going to do it in this election, but 2028 is coming up and pretty sure there's some statutory authority for the U.S. Postal Service to do this here. Speaking of statutory authority, I've got to wonder if Brett Kavanaugh is even inclined to actually do this major question's doctrine thing for real, for real, because he really, really never seems

to want to do it when it would apply to. Donald Trump. So listeners, if you haven't been listening to strict scrutiny for your entire life, what are you even doing with your life? But let me catch you up real quick. The major questions doctrine is a totally made-up fanfic thing that Neil Gorsuch likes to cozy up to you every night before he goes to bed. And it basically requires Congress to first explicitly authorize any sweeping program that an administrative agency might seek to put in place. For example, student loan relief. This court loves to apply the major questions doctrine, mostly to the Biden administration. It has applied the major questions doctrine to Donald Trump in the context of tariffs, but mostly because that was an

opportunity to further embed this made-up fanfic into jurisprudence, not because it actually was a major question. In any event, Coach Kavanaugh here doesn't seem to ever want to do the major questions doctrine, because if you applied this made-up fan fiction, it would totally apply here. This is a major program of sweeping repercussions. Shouldn't the court intervene here and make sure that Congress specifically authorized the U.S. Postal Service to completely federalize elections and take all control of elections away from the states? Because that seems pretty consistent with a major policy ship. Seems big. It seems big. Big of true. It does. But Kavanaugh thinks the agency can do it anyways because he can't read. I'd like to offer him some free tips. One is that by the time I was

in kindergarten, I could read. Second is, by the time I was a teenager, I learned that not everyone will like me, and that's okay. By my 30s, I had even learned to be comfortable with that fact, and know that I could do hard, right things, even if those things might be unpopular. I do you want to do hard right things. Right. Not correct things. Exactly. Exactly. Not the meaning here, Brett. But please see your therapist for some help for how you might be able to evolve to get on my level. Indeed. Strict scrutiny is brought to you by Cozy Earth. I'm psyched to tell you how much I love cozy Earth. I change into my Cozy Earth bamboo, stretch-knit wide leg pants every night at home.

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I'm going to pivot to something not at all evolved, in fact, like very unavolved, which is the Piaz de Rézestants, the dissent of one Samuel Alito, joined by one Clarence Thomas. They basically indicate TLDR that they would allow King Trump to do everything and anything, including rigging and stealing the upcoming midterm elections. Where to even start with this completely unhinged dissent? Like these guys, whoa, like, sirs, what are we doing here? Let's highlight a few very chef's kiss features of this dissent. So first of all, this duo has a very creative,

HGTV-inspired approach to statutory interpretation that is rife with false equivalencies. The other thing this dissent does is it, victim blames the states and Democrats for basically getting themselves into this mess because they objected to a federal takeover of the election process. Again, truly peak Lido to blame the victim. The other thing that it does is it embraces wholeheartedly with their full chess. All of these voter fraud conspiracies in the absence of any evidence. I mean, it's truly, I saw Goody Proctor forging mail-in ballots.

with the devil in the moonlight. Like, it's that kind of vibe. And all of this, I think, goes to the fact that at bottom, these two literally could not give a fuck about voters or democracy or an expression of the people's will because really what they want is what they have right now, which is Donald Trump in office doing the most. So Alito packs a lot in. We're going to just, again, as Melissa said, take through some of the highlights slash lowlights. One is Alito claims that the Postal Service has the authority to implement this regulation that might disenfranchise literally millions of people and erase state laws governing mail and ballots, in some ways both on procedural and substantive grounds, both because the Postal Service has this substantive authority and because he says

the Administrative Procedure Act doesn't actually allow you to challenge certain kinds of postal service regulations. And one of the ways he does that is by focusing on a particular regulation of postal service power, including its power to dispose of stuff in the mail, that is supposed to be limited to, quote, non-mailable matters, like stuff that exceed size and weight limits. And he refers to this provision of the Postal Service law as, quote, tucked away in a corner and niche, and thus essentially irrelevant in the context of what he views as this broad, nearly plenary power of the Postal Service to regulate all aspects of the males. This is the very HG-TV-forward interior design approach to statutory interpretation. We're just rearranging some furniture here, by which I mean congressional enactments,

and asking whether this statute has good feng shui. But, I mean, Leah, are you even surprised? This is basically the same play that Alito did in Louisiana versus Kelle, where he's like, you know what, let me update section two of the voting rights act. I mean, this is like, do you makeovers, interior decorating, and more? But this is like trading spaces when there was Hildi. Hildi was the decorator in trading spaces who would. literally come in and paint your fucking living room black and put like a vase in the

middle of your dining room table filled with nothing but eggs and be like it's gorgeous. That sounds like how Melania redesigned the East Wing for that first Christmas they had in the White House room. Yes, with the menopause trees. Yes, that was crazy. This is a shape rotating approach to statutory interpretation. This is textualism, guys. This is textualism.

But seriously, I have no idea what it means to say that some statutory enactments are niche or tucked away in a corner other than the. that it allows a justice to say that these parts of the statute that I don't like and that prevent me from reaching my desired outcome don't count. Basically, it means what are some statutes between friends and fascists? Nobody puts Congress in a corner except just state. Yeah. Justice. Where is Johnny to come and like redeem all of this? Johnny from dirty dancing. Anyway, in truly- We knew which Johnny you were talking about. I just like, I don't know. I don't know. That was for me. I got you.

No, no. It's for the millennials and the gen Alpha. Who don't know their dirty dancing. Yeah. Yeah. Okay. Well, watch that film. I mean, literally, we've never, like, sweated looking at Patrick Swayze while playing a DVD and rewinding it.

They haven't lived. They have not lived. Anyway. Sorry. Back to the substance. At hand. Folks, in truly epic false equivalencies, Justice Alito suggested in this dissent. that the Postal Service regulation committing to throw out your ballots on Moss, if any ballot in a batch of ballots, doesn't comply with these arbitrary rules.

He says this is no different than, quote, the basic requirement to list the recipient's address on one side, sir. FYI, my kids would send mail back from camp, and I'm just going to say, schools are not teaching kids how to address an envelope, and I didn't realize that I actually had to do this. So I don't know how my kids learned to address a novelop, but they can't. And the mail still got to my house. So the Postal Service still delivered it. So I'm not actually sure this is the argument he thinks it is. Anyway, the second point, Justice Alito makes is that this entire fiasco is really the fault of liberals, Democrats, and the states themselves who decided to challenge this. So it's not the Trump administration's fault.

The Trump administration gets no blame for announcing plans to interfere with the midterm elections by taking over the postal. service and using it to federalize the elections. According to Justice Alito, quote, the plaintiff states and the courts bear a substantial share of the blame for the rule's timing. That is obviously because the states decided in April to challenge this and litigation cast a cloud over the government's ability to make a rule. Also, might want to put the court in here, too, for saying that the litigation wasn't ripe in the first instance. So maybe that also put some time on the clock. I don't know. I'm not sure it's all the victim's fault here. Yeah, and also kind of as a substantive response on this timing question, just a reminder that even though the administration was subject to an injunction, the Postal Service did go ahead and issue a rule anyway. So the litigation does not seem to be the thing that caused any delay. The Postal Service moved forward anyway. So, you know, what's, I guess, a little thing like causation when you can just say that Trump is the victim and, you know, Blue State AGs and the Democratic appointees are the problem? Also, Taylor Swift.

Yes. Also, to the extent Alito is suggesting that everything would have been hunky-dory had the rule been finalized by mid-August. That is just wrong. That would not have been enough time for implementation without mass disenfranchisement. States had already printed ballot return envelopes and informed voters of the election rules by that point. And in what can only be described as an effort to cultivate collegiality among colleagues, Justice Alito also tries to lay the blame for all of this. on his colleagues, the other Supreme Court justices, as he puts it, quote, the government had to wait nearly another full month for this court to weigh in.

This is a less than subtle attack on Justice Jackson. If you haven't picked up on this, there are stories in the right-wing media suggesting that Justice Jackson caused some delay because she deigned to put pen to paper and write a dissent. In a footnote to the order announcing that the court would immediately put into effect it's ruling nullifying the Voting Rights Act, which then set off the last minute redistricting, even in places where primaries were underway. Justice Alito also suggested that that was Justice Jackson's fault because she had dissented

from the order. And Justice Alito responded that the, quote, constitutional question was argued in conference nearly seven months ago. And that kind of language obviously set off all of these right-wing takes about how Justice Jackson and the Democratic appointees, but mostly Justice Jackson, are to blame for the court unleashing chaos in the upcoming midterm election. So, FYI, according to right-wing media, if black people are disenfranchised, it's because this black woman decided to write some stuff down. Who taught her to read anyway? And to write. 100%. Yeah. And just to reveal

how conspiracy theory, Maga upheld he is, Alito repeats, like with a straight face, the demonstrably false claim that the regulation interfering with mail ballots is needed to, quote, better detect election fraud. To be clear, as a reminder, there is exactly zero evidence in the record of this. There is exactly zero evidence of this period in or out of the record. And against this evidence-free conspiracy claim, Sam Alito balances the difficulty to election officials. He's basically saying, as for the equities, which we talked about earlier, the government has a strong interest in enforcing the rule in implementing it. We'll also enhance the visibility of federal ballot mail to better detect election fraud. Then he says on the other side of the

balance, the plaintiff states invoke the practical effects of implementing the rule close to the midterm elections. So notice who is not in this scale anywhere to be found. You have the Trump administration on one hand, state election officials on the other. The millions of voters who cast their ballots by mail nowhere to be seen, including voters who cast their ballots by mail because that is the way elections are conducted in their states or because they live in a rural area or they are disabled or elderly and voting by mail is literally their only option to vote. Those people and their democratic interest in participation get nary a mention in Alito's balance of the equities. Let's be fair to him. He does say explicitly that he takes that problem very seriously,

but it is not enough to convince him. Well, but he's talking about the burdens on election officials, not voters. He says, I take the problem very seriously. And the problem he's talking about is the burden on election officials who have to scramble to change their rules. I thought it would have been so easy to write a sentence or two acknowledging the disenfranchised. I didn't see it on the page. I think a fair reading is that he bundled the voters into that. He just doesn't give a fuck about any of it. The voters is string to fairly read Sam Alito. There's enough. I hear you on there's enough fair criticism. We don't want to do any unfair. But I actually think that when you read this closely, he is talking about plaintiff states. Yes. Not representing the people because he's always believed that the states represent the people most clearly see dots. Through their. legislatures. Yeah. That's true. So probably you need to wrap this up. And in some ways, the best thing about this is that Alito would be mad as hell if you even suggested that this opinion suggests he is a political hack. He would be the victim of false allegations and attacks. So definitely don't go on social media and say that Justice Alito is a political hack who listens to right wing radio and podcasts and Fox News all the time, so much so that his brain is actually pickled. Definitely. don't say that. Definitely don't say that. But what you should say is absentee mail-and ballots

remain intact for the upcoming midterm. The Postal Service, Trump administration cannot interfere with them because for this Supreme Court last-minute sloppy election subversion is just too far. They would prefer that the administration lie better or implement the Republican Party's long-term anti-democracy agenda rather than just going out on Trump's own, I think. That seems right. That seems right. Lie better. Also, sorry. While we were recording, we got the absolute best victim-plaming analog. So Cash Patel is currently testifying before the Senate, and Durbin asked him about the FBI revisiting its hiring criteria and no longer excluding people who had engaged in beastiality. What about the bestiality? Tell me what it said before.

It automatically disqualified any individual who participated on either side of it. Obviously, we are never going to hire the criminals. The side of what? The bestiality? Yes. So you disqualified the animal? And, yes. Okay.

And Cash Patel responds, applicants who have engaged in bestiality means they were victims of beastiality because they were forced to do so. And I'm... The sheep made me do it. The FBI weird. Not going to criminalize and prevent victims from serving, like the FBI hiring people who were forced to have sex with animals against their will. Leah, I don't think you've really fully grappled with the full effects of the sheep state.

And I think we're going to have. I just, I'm sorry. I had to bring your attention to this trying to monitor in the event. There were any additional breaking Supreme Court related things. Nothing good happens in Congress anymore. And yet you have exchanged dirt turbine. ask this question. Wow. FYI, if Pam Bondi

had said this, she would be out. I mean, she is out. The fact that Cash Patel continues to be employed by the federal government is proof positive that not having a uterus is the single best career move you can make in this administration. Single best.

Absolutely. Yeah. Yeah. All right, well, glad to leave things money away. Bye. Dual meaning there. Sheep state and animals. Yep. Stirk scrutiny is a Crooked Media production. Our show is produced by Melody Rowl and Michael Goldsmith.

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