Typically it was not a unanimous decision, with Thomas and Alito of course voting with Trump on anything that might help cement a right-wing administration, to give a 7-2 decision. Kavanaugh, while joining the majority, said that "
there is at least a fair prospect that the final rule falls within the Postal Service's statutory authority.... but applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials do not have sufficient time to reasonably implement the rule before the elections." So, basically, he
wants to give Trump the win, but it's too close to the elections. The two dissenters, however, basically want to just hand Trump the keys forever, it seems, and will ignore reason and the Constitution to do it.
So, expect more Executive Orders after the mid-terms as Trump tries to implement this for the Presidential election 2028. It'll all hinge on Gorsuch, Coney Barrett, and Roberts as to which way it will go.
It's disconcerting that even those 2 were willing to approve Trump's EO
now, just a few weeks prior to the election, and after millions of ballots have been sent out.
The dissent from the Alito: "
The court incorrectly denies the Government's application for a stay of a universal injunction that bars implementation of a final rule concerning election ballot mail. Some of the plaintiffs lack standing, while the remainder are pursuing a claim that this Court has recently called a 'Hail Mary pass' that 'rarely succeeds... The Government has made the showings necessary for a stay, so I respectfully dissent."
The "lack of standing" seems to relate to the idea that a rule needs to be implemented for someone to have standing (e.g. be an injured person as a result of the rule), and since these rules that Trump wants have not yet been implemented, there can be no standing. Seems... bizarre. You apparently need to be actually shot before you can say that a rule allowing people to fire weapons indiscriminately should not be allowed to proceed. Weird.
The "Hail Mary pass" is described in their dissent in how they think that the Government would ultimately win their case, claiming that the postal service has generally been outside the review of the APA - which is broadly true for their general activities of simply delivering mail. But these two dissenters brush over, or imply, that having Trump's desired control over who gets sent mail-in ballots is not so far outside their normal procedures, and thus the APA isn't really an issue. They claim that trying to argue that this EO by Trump would be so far outside the normal scope of the postal service is the "hail mary pass". Well, it doesn't seem to be. Postal service collect, sort, deliver mail. They don't check that the recipient is on a predefined list of recipients; they don't have authority to cancel batches of deliveries if there is one mistake, etc. They would (to my outside eyes, at least) be stepping well outside their normal activity, and infringing on what states should be controlling.
But, hey, at least the next two years will be fun!
