SHOCKING UPDATE from rightwing Supreme Court justices

We have a huge US Supreme Court story. here that is flying completely under the. radar. Mark, can you explain this news. as it relates to the two Supreme Court. justices that we have no shortage of. news to talk about, Samuel Alito and. Clarence Thomas? >> Yeah, so you know, the breaking news was. that the US Postal Service rule was put. on ice by a majority of the Supreme. Court in a really important case for. democracy. But as you point out, there. was not a lot of attention paid to an. eight-page dissent. Now, just to put.

this in perspective, the entire majority. opinion was like a paragraph. And then. the dissent was eight pages. It was like. 16 times longer than the majority. opinion. So, Justice Alito, who wrote it. and was joined by Justice Thomas, clearly unhappy. with the outcome. And you know, essentially they would have upheld this. rule. They would have said, "Fine, you. know, this goes into effect. notwithstanding the fact that it. disenfranchises voters." And perhaps, you know, most startling from my. standpoint, you know, who likes to.

believe that all of the justices look at. the law and the facts. Well, to look at. the law and the facts, you have to look. at the law and the facts. And so, Justice Alito says, quote, "The. government has a strong interest in. enforcing the rule and implementing it. will also enhance the visibility of. federal ballot mail in order to better. detect election fraud.". But here's the problem. None of the courts that looked at this. below, none of them, the trial not the. trial court in Massachusetts, not the. trial court in in Washington, D.C. in.

the case that my law firm and I were. involved in litigating, none of them. found that there was any election fraud. to be detected. So, when he says that. they have a strong interest in order to. better detect election fraud, like they. are supposed to be bound by the record. that comes to them from the trial. courts. And you know, just to quote. Judge Carl Nichols, who is the Trump. appointee who ruled against the Postal. Service in the DC case, the case that my.

law firm's involved. Uh quote, "Federal. government does not point to any record. evidence that there will be significant. fraud in the upcoming elections in the. event the court enters preliminary. injunctive relief.". Okay, so just to be clear, that judge in Washington, D.C. said the. federal government does not point to any. record evidence. Not a little record. evidence, not some record evidence, zero. record evidence. So, I I I am left to. ask myself where it is that Justice.

Alito found in the record the the the. the suggestion that there needs to be. better detection of election fraud. >> If this is the justification they're. going to put forward, doesn't there have. to be some actual harm to warrant a law. that seeks to fix a supposed problem? >> Right. So, that brings us to kind of. like the second issue with this dissent, which is it kind of like just wishes. away or ignores away the fact that this.

would devastate devastate the ability of. voters to vote. Like, just absolutely. make it very, very, you know, impossible. in many states that it would it would. states and state election. officials, right? I mean, the. conservative justices pay a lot of lip. service at times with the Purcell. doctrine and the need to make sure that. state election officials are not. overburdened by having last-minute. changes to their election rules. Well, I. mean, what could be a bigger burden as a. last-minute change than to tell entire.

states that like their their ballots. can't go out, their ballots won't be. approved, their design envelopes. And so. what? Then they can't do vote vote by. mail at all. So, so, you know, yes, there needs to be both. evidence in the record to support the. legal claim. And then they are supposed. to weigh. the relative um harms. to the public. and to the to the to the federal. government. And how in either of those.

instances you wind up with an eight-page. [laughter] document saying that the that. the that the Trump administration wins? I mean, it it it probably tells you. something that it was seven to two. >> Right. You have maximum maximum damage. that it would cause. You have no. evidence that there's a problem and. somehow Samuel Alito and Clarence Thomas. looked at that and said, "Yep, that that. fulfills all of our qualifications to. allow this thing to move forward.". >> Well, I'm just I just I just want to ask. like the rhetorical question here. Imagine for a moment that Joe Biden had.

woken up one day and said, "I don't like. mail-in voting.". I just don't like mail-in voting. So, I, Joe Biden, by myself, are going to going. to issue an executive order that I'm. going to expect the US Postal Service to. enforce. And then just imagine that, you. know, that DeJoy, who I think was still the. Postmaster General at the time, like he. would have just snapped to and said, "Yes, let me do exactly what it is that. Joe Biden wants.". Could you just imagine that that Fox. News would be like, "This is exactly.

right. Like this is 100% right." Then it. would go to the Supreme Court and the. conservative justices would be like, "Well, you know, the president says this. and so he's concerned about this. We. must be concerned." I mean, it's just. it's. it is inconceivable. that the entire machine, starting with. the Republicans in Congress, going. through Fox News, going to the Supreme. Court, like it's impossible to imagine. that they would rally behind this if if. Barack Obama or Joe Biden did none of. this. >> All right. I I have to ask this question.

here and it's almost rhetorical at this. point, even though it shouldn't be. Section Article 1 Section 4 of the. Constitution says that the the power to. regulate election that the time, place, and manner of election belongs to the. Congress and to the states, not to the. executive branch. How in that plain text. of the Constitution do two Supreme Court. justices say, "Nope, you know what? The. executive branch in fact does get to. regulate. how elect elections are conducted.

by virtue of allowing this executive. order to go through, which effectively. bans mail-in ballots." Like how do you. reconcile those two things where the. plain text of the Constitution affords. that power to Congress and and the. states and yet the president is saying. it belongs to him? >> So, it's a really good question and you. know, I read and reread. the descent carefully because that's my. job as a lawyer. And you know, I just want to quote to. you how it begins. Some Some five months ago, the president.

issued an quote internal directive to. his quote subordinate subordinates. mandating among other things the United. States Postal Service quote initiate a. proposed rulemaking regarding election. ballot mail. So, I mean from Justice Alito's. standpoint this was just like, you know, the boss telling his underlings go do. this thing and since the Postal Service. in his view is accountable to Donald. Trump like what's the big deal? And of course all of this.

sort of ignores the fact that the Postal. Service doesn't have the authority to do. anything. unless there is a law that gives them. that authority. >> Right. >> have the power Donald Trump doesn't have. the power to say that they should do. something that the Constitution doesn't. give Donald Trump the power to say they. should do. So, in some ways they just. kind of like glide past this, right? By. being like, "Well, they were responding. to the president's memo president's. executive order without like the. answering the question, but but he.

doesn't have the authority to issue this. executive order. Like he doesn't have. the authority to do this. And this is. where I think actually Judge Nichols, who as I mentioned before, you know, appointed to the bench by Donald Trump, a very fair judge, on the DC District Court. Like his. analysis was quite conservative in its. approach. Like he didn't embrace, you. know, a lot of sweeping language or. flourishes flourish about democracy. He. just basically said, "Look, like states. set the time place manner of elections.

Congress can override it. Congress. passed a law about the Postal Service. and it simply didn't give the authority. to the Postal Service to regulate. mail-in ballots. Like it just They just. don't have that power. And so the you. can't throat clear yourself past that, right? You can't be like, "But the. president this." Because if he if if. Congress hasn't given him the authority, then that's the end of the that's the. end of the analysis. >> Right. It's worth noting here for everybody. who's watching. If you want more. analysis like this, could not recommend.

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Mark. So okay, we've got Clarence Thomas and. Samuel Alito who are willing to kind of. show their asses here, what they were. willing to do for Trump. Uh obviously. this didn't work for the midterms, but. we have seen instances where. conservative members of the court. may be in favor of something, but are. strategic enough to keep their powder. dry only up until the moment where it. actually matters. And so, my concern. here is that while Clarence Thomas and.

Samuel Alito are just such partisan. hacks that they don't care, they don't. they don't care to keep their powder. dry, that you can still have someone. like Neil Gorsuch or Amy Coney Barrett. or or John Roberts who says, "Look, we. want this. It's just too close to the. election. Uh it would cause way too much. chaos, but that doesn't mean we're. closing the door to this. It we just. need a better vehicle or a more timely. vehicle to be able to usher this. through.". Does that concern you at all that that, you know, while of course we should. expect the most partisan response from.

somebody like Alito or Thomas, that. because this thing is still going to be. litigated as we head toward 2028, that. the door may not be closed entirely to. to the conservative block of this court. on this issue? >> Look, I think you're right. We can never. assume the door is closed. I mean, I. could give you example after example of. times when we thought. we had cleared the danger zone only to. find out that we were not. I mean, take. for example. um section two of the Voting Rights Act. I mean, section two of the Voting Rights. Act had been uh you know, explicitly.

called out by by the Chief Justice, Chief Justice Roberts, in the earlier. Shelby County case as still in full. force and good law. In the Alabama. redistricting case, just a couple of. two, three years ago, they struck down. the Alabama map under uh. affirmed struck down the Alabama map. under the Voting Rights Act. And then, we turn around in a couple of years. later in Kolbe, as you say, a different. vehicle, perhaps one that they had built. more consensus internally towards. So, we always have to worry about that, and.

I do think, you know, if you want that. if you want to make that case, what you. would point to is it is technically a. 7-2 decision, but Justice Kavanaugh. actually signaled that on the legal. issue for 2028. He he he thinks that. that the Postal Service may have a good. argument. Um you know, he ruled he wrote a. separate concurrence uh in the result. saying it was too close to the 2026. midterms, but he definitely carved out.

the possibility of being in the in the. with the two other justices afterwards. Then you talk about Justice Gorsuch. You. know, Justice Gorsuch presumably was on. board with this majority unsigned. opinion, but it was unsigned. And you. know, again, like you you it wouldn't. shock you if that started you know, if. if if he had um. if he had different points of view down. the road. So now you start to look at. 5-4 and now they're looking at, you. know, is it Coney is it Justice Coney. Barrett? Is it the Chief Justice? And.

and they could very well say, "Look, you. know, in the exigency of 2026, we had to. say this thing, but but now that we have. had full briefing and the the. opportunity to look at this in the cold. light of day, you know, we see it. differently." I'm not saying that's. going to happen. I actually think it. won't happen here. I think that this is. too big of an issue for these justices. to walk back this quickly in time for. 2028. You know, I I I think that that's. unlikely, but it is certainly something. we have to keep our eye on. We always. have to keep our eye on any room for any.

wiggle room any room for for Donald. Trump and Republicans to convince judges. that they should be allowed to make it. harder for people to vote and easier for. for them to cheat. >> So it's worth asking here, if Trump is. still going to be president for the next. 2 years, even in an event where. Democrats have the House and the Senate, it's not like you can pass legislation. I mean, you can pass it through the. chambers, but you can't get it signed. into law. What could and should the. Democrats be doing right now to.

to hedge against the prospect of this. case being re-litigated in the lead up. to 2028? >> Look, I think one of the things that. that Democrats didn't do as well as they. should have during the Biden years was. to make this issue. a front and center issue. I'm not saying. that it needs to be the issue they. campaign on. I understand. There are. going to always be certain issues that. are going to in the moment, in the heat. of campaigns, that are going to be more.

important or rank higher on the list of. voters in general and particularly swing. voters. So, I understand that issues. involving the economy and the like are. important. I are are very important. I. think that one of the mistakes that the. Biden administration made, however, though was that it let these issues. slide off the agenda. of of of public concern, off the the. sort of the bully pulpit agenda. So, it. allowed Donald Trump to essentially. be talking about this issue, promoting.

election denialism, promoting voter. suppression, where where Democrats were. just like discussing other things. You. know, in the Biden era, you know, they. were focused a lot on, you know, Build. Back Better and the Inflation Reduction. Act. And, you know, like I understand, again, the importance of those as. policy, but. we could have been talking more about. this. And I think going forward into. 2027 and 2028, it is incumbent on. Democrats, both in Congress, in. governor's mansions, on the trail if. they're running for president, to be. talking about the importance of.

protecting the right to vote, the. importance of making sure that mail-in. balloting is is available to people. Because anyone who thinks that courts. don't hear that and don't pay attention. to public pressure, they just don't. understand how courts operate. And so, I. think it's really important that these. issues stay front and center. >> And look, the the best way to make sure. that these issues do stay front and. center is to support media that keeps. them front and center. And that's not. going to be the legacy media as we know. it. It's going to be democracy docket. So, I'm going to put a link again to. democracy docket right here on the.

screen and also with the post. description of this video. To support. Mark's work in the media space, to. support his work in the courts, signing. up for democracy docket is the single. best way to show some appreciation for. the work that he does. And of course, to. see more episodes of democracy watch. between myself and Mark, make sure to. subscribe to this channel as well. I'm. Brian Tyler Cohen. >> I'm Mark Elias. This is Democracy Watch. >> [music].