Background Reading:

• Supreme Court opinion in Trump v. California
• Executive Order: Ensuring Citizenship Verification and Integrity in Federal Elections

Transcript:

Dr. Michele Goodwin: 

Welcome to On the Issues with Michele Goodwin at Ms. Magazine. As you know, we’re a platform that reports, rebels, and we tell it just like it is. On our show, we center your concerns about rebuilding our democracy and advancing equality. On our show, history matters, we examine the past as we think about the future, and in this very special episode, we’re unpacking, I’m unpacking, this very recent Supreme Court ruling about how we’re all going to vote in this 2026 midterm election.

Let’s break down what the Court’s ruling actually says and what it doesn’t, and of course, it means everyone’s hair is on fire, given that this Supreme Court has tried in every way possible to make it more difficult for people to vote, dismantling the Voting Rights Act, an act that had been supported over the years by both Republicans and also Democrats. And we’re not just talking about the kind of bipartisanship where it’s just three persons from the one side that votes with the other side. No, the 1965 Voting Rights Act was one that had been embraced over the years strongly by Republicans and Democrats, and it has been this Supreme Court, led by Chief Justice John Roberts, which has unraveled it, pulled the thread where it would knowingly make all of the fabric fall apart into what has been a disintegration of something that had been a very noble tool of American democracy, a voting rights act that protected all Americans, one that was needed for all Americans. Let us not forget that the very first suffragettes in the United States were white men who had been dispossessed from the right to vote because they were not wealthy. They could not afford poll taxes, they did not own land, and they wanted, and they deserved, the right to vote.

When we think about voting in the United States, for some, it’s been easy to look to the other side, because these are issues that they think do not involve them. But the history of voting in the United States and the history of discrimination with regard to voting in the United States is something that affects all Americans, save for those who were wealthy enough, owned enough land to be able to do it from the start. But even for those people, they had been dispossessed.

Let us not forget that this year marks the 250th anniversary of the signing of the Declaration of Independence. And what was that all about? It’s about a group of people who had emigrated to the United States, to what became the United States, was not even the United States at the time, to a place where they had established colonies, and they were tired of being governed by a tyrant who was the king. And what they did was to collect their grievances against the king and put them in a declaration that described and affirmed their independence. 

So let’s get to it in terms of what it is that the Supreme Court has done now. 

In March of 2026, Donald Trump signed an executive order, basically the underpinning suggesting that there is something faulty about American elections. And not faulty in that we don’t have a federal holiday with regard to elections, but basically stoking up what have been the flames, the smoke, the smoke and flames, dating back to 2020, when he, very, in a very disgruntled way went about claiming that the 2020 election had been stolen. And in fact, let me just back up there, because what we saw on January 6th was, in fact, the embodiment, really, of the claim. The violence that we should never forget- the terror that was inflicted against our Capitol. The fear that even the Vice President had of potentially being lynched and killed that day. The fact that he had to make statements to his family members alerting them of his love for them, because he feared that he might not survive January 6th. The fact that the Confederate flag had made its way to Washington, D.C., something that had not even happened during the Civil War. The fact that in our nation’s capital defecation took place in the rotunda- people pissing in the rotunda, defecating in the rotunda. The call for the death of the Speaker of the House, Nancy Pelosi. Those images that we saw of Republicans and Democrats crouching under tables in fear, barricading doors, staff members fleeing. That was January 6th. It was, in fact, the capstoning, if you will, of the claims that the 2020 presidential election had been stolen.

That, in fact, something fraudulent had taken place because Joe Biden could not have, under this theory, have secured the 2020 presidential election.

The theory was that somehow there was something fraudulent that had taken place, and because of that, under that justification, Donald Trump filed numerous lawsuits. And when I say numerous, we’re not talking about four, or five, or six, or ten, or fifteen, or twenty, or thirty. No, we’re talking about more than sixty lawsuits filed under this theory that somehow there had been something that he had been stripped… that had something that had been stripped away from him, something that he was deserving, such as winning an election that he had not.

Now, there are reasons for us to think about why he lost to Joe Biden in that 2020 election. I’ll just name a few of them, and then we’ll keep it moving. A few might be that people were really concerned about children being locked in cages, something that took place in the first Trump administration. Concerns that Americans had about lawyers in the DOJ during the Trump administration going before federal judges, arguing that children who were in U.S. custody, that had been locked in cages, given frozen burritos, and these aluminum foil-type blankets. That these children did not deserve soap and toothpaste, something that federal judges said was absolutely asinine, and that that just simply did not make sense, ordering the Trump administration to make sure that the children that were in its custody would be cared for. And in fact, it’s worth remembering that there were federal judges that so didn’t trust the first Trump administration to do right by those children that they ordered the ACLU, the American Civil Liberties Union, to be responsible for locating the parents of those children, because there wasn’t confidence that the administration would be able to do that in a manner that was consistent with the federal judge order.

There are other reasons why Americans would not have voted for Trump to elect him as president in 2020. Maybe the concern about the Muslim ban was something that Americans would be concerned about. Maybe it was the handling of the global pandemic, COVID-19. Remember when Donald Trump said that all people needed to do was to use disinfectant, that somehow that might make a difference for them? At the time that that was put into the broader space, because, of course, social media amplified this. I looked at the complaints and the concerns that were placed to those agencies, state by state, that handle concerns with regard to chemical exposure. There was a peak after Donald Trump had recommended that perhaps a way to treat COVID was through your household disinfectant. It turns out that the agencies that handle concerns about chemical exposure, that there was a peak in Americans reporting getting sick and getting ill and being hospitalized after using household chemicals to treat COVID.

There are a number of reasons why Americans lost faith in Donald Trump after his first term in office. Now, that doesn’t explain why Americans elected him in 2024, but there are reasons why he lost in 2020. He filed 60 lawsuits, and only one of them did he win, and this was one that allowed individuals to come within six feet of those who were administering the elections, basically counting the ballots. That’s what he won on, not on any claim that he was right, that the elections were rigged. And so, where does this place us now, in this lawsuit? Donald J. Trump, President of the United States v. California.

Well, this is a lawsuit that ultimately has resulted from that March executive order where Donald Trump wants to seize authority that he doesn’t have to control state elections, which is authority that he does not have constitutionally or through legislation. But the concern is that mail-in ballots are a bad thing. Now, I do not believe that they’re a bad thing, and clearly Trump must not either, because he’s used mail-in ballots himself. The theory is, behind the Executive Order, is that there’s a place where fraud has taken place, or it’s so open and rife for fraud to take place that the U.S. Postal Service needs to be authorized to intervene in state elections and decide, whose ballot should be received and not. We will refer you online. Check us out at ms.magazine.com, and under Ms. Studios, where we’ll have a link to the executive order.

This is extraordinary in terms of what’s been proposed by Donald Trump. Extraordinary in that the Postal Service has never had this kind of authority. Extraordinary in that a president has never attempted anything such as this. Extraordinary in that of any executive order that could have taken place with regard to an election, that it wasn’t about making sure that Americans have greater access to voting in November, rather than standing in lines that are six hours, seven hours, eight hours, nine hours, depending upon where you are.

What is so concerning about this Executive Order, and we’ll get to the Supreme Court. What’s so concerning about it is that so many Americans, regardless of party affiliation, regardless of how they have voted in the past, attempt to want to vote in the future, that so many Americans rely on being able to place a vote. Place a ballot in by mail.

Look, people who live in rural areas, whether in Montana, Wyoming, or not, living in California, New York.

If you’re living in a space that’s difficult to get to the nearby city, mailing in your ballot is something that allows you to participate in the democratic process. But it’s not just people who live in rural areas, it’s people who are in the military, who rely on mail-in ballots. It’s individuals who are being educated at schools, at universities, colleges, community colleges that are not in the state where they reside. They rely on mail-in ballots. Individuals who have disabilities, who use wheelchairs, who use other means to help them be able to work through their disability, they use mail-in ballots. And then, frankly, for people who work jobs, the second shift, third shift, or people who are working 9 to 5, but otherwise might be picking up the kids after school and various other things that keep them away from being able to conveniently cast a ballot want to use a mail-in ballot. Why is that so difficult to understand? 

And what we know is that there is no history of anything that is broad with regard to election fraud in the United States. Not at all. It’s not to say that there aren’t mistakes that get made. They do, but they’re so infinitesimally, infinitesimally, infinitesimally small. And the people who end up violating the rules of our elections, that is an offense. It’s an offense wherein they can be criminally charged, prosecuted, and sentenced. So it is not as if, if a person does violate election laws, as if there aren’t measures in place to deal with those individuals, because there are, which is why it’s such a disincentive for people to fraudulently cast a ballot.

Now, the Supreme Court’s decision, which was issued this week, it’s one that is absolutely shocking, and it’s one that has received two dissenting opinions. One written by Justice Sotomayor, which is joined by Justice Kagan, and a separate dissenting opinion by Justice Ketanji Brown Jackson. Now, what we don’t know is who in the majority wrote this opinion, because this is part of what you have heard of called the Shadow Docket, my good friend and colleague Steve Vladek has written a book about the shadow docket, really the most learned expert on the shadow docket in the United States. And what that basically means is that there are decisions that are being issued by the Court without a signature on the opinion, such that we would know, well, was this Justice Thomas? Was this Justice Alito? Was this the Chief Justice, John Roberts, who wrote this. Now, we don’t know, and we could all speculate. It’s worth remembering that it is actually the Chief Justice John Roberts who has basically led the campaign to dismantle the Voting Rights Act of 1965 chip by chip, such that all has fallen down, with the most recent decision in Callais. But we could think back more than a decade ago to the Holder decision, also written by the Chief Justice John Roberts.

What in the world is under his fingernails? What has gotten him so contemptuous about Americans being able to vote? All Americans remember, again, the first suffragists of the United States were white men who didn’t own property, and were not wealthy, and were dispossessed of the ability to be able to vote.

Remember those who fought against the Crown 250 years ago. Why? Because they were dispossessed of the ability to be able to govern their own lives. The ability to be able to vote is something that is important to all of us as Americans, and perhaps in this dismantling that has taken place, because the Court itself has been involved in framing it as almost exclusively a concern of Black Americans and failing to actually, and this is very interesting, for Supreme Court justices who claim to be so wedded to history, to care about history and text. Very interesting that this is a Supreme Court that has failed to invest in informing the American people of that very first energy, the first passion about being able to vote, was that amongst white men in the United States who were disinvested the right to be able to vote. And they were right to be concerned about their voting rights, as has every community since 250 years ago, been concerned about enfranchisement.

And look, before I get to the decision itself, let’s also take a moment to think about why would it be that people who live in rural communities would care about voting, and the people that they elect? Well, maybe they care about having access to good infrastructure, roads and bridges, that they need to get into the major cities. Maybe they care about access to healthcare in their rural areas and want to elect people who will care about those issues as well. Maybe they care about making sure that there is economic generation in the areas in which they live, and that they’re not forgotten about.

All of that would make sense.

People with disabilities. Why would they care about voting? Well, of course they would, about being enfranchised, not just with the vote, but what it means to be enfranchised within a democracy, and to not be forgotten. Let’s remember the Americans with Disabilities Act was something that was fought hard for.

Students… why would students care about voting? For many, many reasons. Let’s remember that right in this period, there are going to be Americans who went to college who will be suffering with the high rates that they will be paying back for their loans. And yes, they would be interested in electing people who care about the affordability of education, including higher education. So let’s just be clear. All of the communities that might be disenfranchised if the Trump executive order were put in place are people who have legitimate concerns. Legitimate concerns about where they fit in American democracy as Americans. So, let’s get to it. 

Now, this case… this shadow docket case is one in which the Supreme Court basically gave a speed ramp to the Trump administration, because there’s already an injunction, a nationwide injunction, that has existed on this executive order, and there’s going to be a lot of teasing out in terms of litigation that comes from here. But there is something that is symbolic, and there is also something that’s procedural in this case, the procedural point. The Supreme Court has basically said that the challenge that has been made against this Executive Order by twenty-three attorneys general is basically premature.

According to the Court, they’re presuming that there will be harms that have not yet manifested. And this is something that many scholars are finding really troublesome about this Supreme Court. This is a Supreme Court that says, you know, maybe you worry too much about what Donald Trump will do. And over and over again, what do Americans see? A whole lot of trouble coming out of this administration. A whole lot. A Supreme Court that says, well, we’ll just wait to see it. And then it’s too late. And Justices Sonia Sotomayor and also Justice Ketanji Brown Jackson addressed that in their dissenting opinions. And so, what that means is that the Supreme Court has not said we sign on to, we find legitimate, we find constitutional, we find lawful this March executive order. They’ve not done that, but what they have done is to say, slow your roll, those of you who have challenged this executive order.

Now, make it make sense. Well, Justices Sonia Sotomayor signed on with Justice Elena Kagan and Justice Jackson say, make it make sense, and it does not make sense, and I’ll unpack why that is. According to the Court, there will be time for those attorneys general that want to challenge this Executive Order to do so after some harms occur, essentially. All right, so then what does Justice Sonia Sotomayor say to this?

She says that today’s decision does not address whether the president’s attempts to interfere with the state’s administration of the November 2026 election are lawful. And basically, she’s saying, let’s put all cards out on the table, because we know why there is this March executive order. It is because drum roll, please, it’s because there’s real concern about what’s going to happen in November 2026, because already of the year and a half of this administration, and all of the scorched earth that has been produced by this administration, and, to be clear and honest, this Congress as well, that has given tremendous deference to the president and his agenda, and there is real concern. Let’s not forget Mitch McConnell, and we’ll do another podcast about that, but there is a real concern about Republicans losing seats in Congress. All right.

So, Justice Sonia Sotomayor says that “today’s decision does not address whether the President’s 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. Instead, today’s decision merely postpones adjudication of those challenges. Nonetheless,” she says, “because I believe the respondent state’s challenges are justiciable now, I respectfully dissent.” And Justice Sonia Sotomayor is right!

It’s not been the case where states have to experience the harms first. If in fact, the harms are indeed credible. If they will, in fact, harm legal interest, civil liberties, civil rights. They will harm people, then states have a right to push forward. Here’s what she says in her second paragraph, and what she’s written is a four or five page dissent here. Justice Ketanji Brown Jackson goes on much longer.

Justice Sotomayor says, “A commonsense reading,” commonsense, folks, “A commonsense reading of the Executive Order, corroborated by the government’s own representations,” basically suggesting the Trump administration tells on itself, time and again is what she’s basically saying there, that they make it clear that the respondent states face a sufficiently concrete and imminent injury to satisfy Article III, Section 2 of the Executive Order, because it has these two subsections. Subsection 2(a) orders the Secretary of Homeland Security to create state citizenship lists of confirmed citizens who will be over the age of 18 as of the upcoming federal election. Can you believe that?

Homeland Security, creating lists, citizenship lists? This should scare everybody. And then Section 2, Subpart B, then directs the Attorney General of the United States to prioritize the investigation and prosecution of state and local officials who provide ballots to individuals who are not eligible to vote, citing statutes prohibiting non-citizens from voting.

She goes on to say, and then I’ll pick up where Justice Ketanji Brown Jackson starts, she goes on to say, “the majority accepts the government’s invitation to divorce Section 2(a) from Section 2(b), parsing the text of each subsection individually, but refusing to read.” For textualists who refuse to read, originalists who refuse to read, but I digress.

She says, “but refusing to read Section 2 as a unified whole, according to the majority, the investigations and prosecutions that Subsection 2(b) prioritizes might have nothing to do with the citizenships list that the immediately preceding Subsection 2(a) orders to be created.” We will also link on Ms. Magazine to the case itself, so that you can actually see exactly what I’m talking about in terms of Justice Sotomayor’s dissent. Here’s what she says. “The clear import of Section 2, however, is that the federal government will use its lists of quote, confirmed citizens, which it has conceded will be incomplete.” Right? “Incomplete to initiate those investigations and prosecutions.” Essentially, Justice Sotomayor is calling it out, and she’s calling out her colleagues in the majority, just as Justice Kagan has done before with regard to the Callais decision. That was that Louisiana decision. And she concludes by saying, “Because I believe the structure of the Executive Order the government’s representations, and the equities count… and the equities counsel against emergency relief, because the Trump administration sought emergency relief.” And she says “all of this counsels against emergency relief, requiring the states to wait to bring their very serious charges and challenges to this Executive Order.”

Alright.

So now, before we wrap up, we have to talk about Justice Ketanji Brown Jackson’s dissent in this as well. And in her dissent, it’s about twelve pages, right? She starts off with this. “The president has issued an Executive Order demanding changes to the standard vote-by-mail systems that the states have traditionally administered. The District Court held that the president’s order is unlawful. The government does not defend the lawlessness of the order before this court.” The Supreme Court, “and no judge or justice has held, or holds today, that the order comports with the Constitution. Still, the Court sees fit to grant the government equitable relief to proceed with implementing the challenged order on the grounds that because the government had not yet issued a final rule at the time the complaint was filed, the plaintiff states lacked a concrete injury for Article III purposes.”

And she’s saying, essentially, make it make sense. Make this make sense at all, because there’s been not a judge, not a justice, not even the Trump administration itself, that has claimed that any of this is actually lawful. 

Makes me think about Leah Litman’s book, Lawless,which was published, just last year or earlier, this year. And what we’ve seen time and again from this administration is a level of lawlessness. A level of lawlessness that fails to show respect for the Constitution for the rule of law. We’ve seen that in the tariffs case right now. We see that. We saw that in the challenge to birthright citizenship. We see consistently this. We saw that in the streets of the Twin Cities in Minneapolis with the gunning down of Renee Nicole Good and Alex Pretti, and then Americans being gaslit, being told that they didn’t really see what they saw, that somehow Renee Nicole Good was attempting to run over agents, not what any of us saw. That somehow, Alex Pretti was an aggressor, not what we saw. So the level of gaslighting that has taken place with this administration against the American public has been really quite extreme. But it’s not just been against the American public.

It’s also been against judges that have attempted to uphold the rule of law. And I say attempt because they have been upholding the rule of law, but it’s been the Trump administration that has basically been suggesting that they don’t actually… the administration doesn’t have to comport with what federal judges have been issuing. And let’s just note, these are federal judges that have been across the political spectrum in terms of who nominated them. This has included judges that have been nominated by Donald Trump himself, nominated and confirmed by, nominated by Barack Obama, and confirmed by the Senate, George Bush, etc. We have seen a range of federal judges that have said that actions of this administration which has been sued now over 800 times since coming into office this second time. That time and time again, these executive orders are unconstitutional, are unlawful, hurt the American public, undermine civil liberties, undermine civil rights, where the federal government has basically weaponized itself across so many of these issues against the American people and the American public and our democracy.

And it’s quite ironic, considering that this year we’re celebrating the 250th year of our democracy and the signing of the Declaration of Independence.

We’ve got a long way to go, and let me just conclude with the closing of Justice Ketanji Brown Jackson’s dissent.

She says, “This is not a close call. The government suffers no harm from an injunction limiting unlawful actions, much less hypothetical and speculative acts that the government says it was not even sure it would take. Denying this stay, request preserves the status quo and the fraught period ahead of a national election. Granting it, on the other hand, that is, granting what the Trump administration wants, risks significant harm, including continued affront to the plaintiff states, including the state of California, their sovereign interests,” and it’s not just the state of California. Remember, 23 other states were part of this? “It strains… places a strain on the pocketbooks of those states.

And the possibility that last-minute rule changes will cause confusion on the ground, jeopardizing the public’s interest in a fair and orderly election cycle.

There is also more than enough evidence in the record here to support the lower court’s conclusion that these harms were actual or imminent when the plaintiff states filed their complaint such that these claims presently are justiciable, which basically means, presently, the Supreme Court, if they wanted to, could say that this Executive Order is unconstitutional, or just let the lower courts do what the lower courts do, rather than the Trump administration currying, what some might say, favor before some justices on the Supreme Court by getting a speed track up to the Supreme Court.”

In any event, this is how she closes.

“In any event, this Court should not have gone out of its way to error correct the District Court’s purported misapplication of our standing and ripeness doctrines, especially given the government’s abject failure to defend the Executive oOder’s underlying legal authority and all that is at stake in disputes involving last-minute changes to election rules When the government obvious goal is to interfere with the plaintiff state’s practices and prerogatives in a manner that the Constitution does not authorize. It is both a serious legal error and a grave misuse of our equitable emergency powers to let the executive proceed even one step further.”

Wow.

If you didn’t get all of the fire behind that and Justices Sotomayor’s dissent, too, then you need to listen again and go to our website to check out these dissenting opinions.

These are challenging times in our country, grave times even, where we have National Guards on the street, we see the dismantling of voting rights, we see the challenges to fundamental civil rights and civil liberties.

But… It’s not all over yet.

There is strength, in each and every one of us to stand up, to stand tall for the democracy that we know that we all deserve in this nation, for a future. That includes, and a future that prioritizes the rule of law, that prioritizes equality. A time in which our Constitution really does matter, and not just a kind of affected reading of it, but a true reading of it that reminds us of the power of we, the people. So, feel free to take another listen to this, go to our website and check out what we’ll have on with regard to the Supreme Court’s decision involving the shadow docket, and keep aware.

Keep listening. Keep thinking. Don’t let anybody ever steal your joy. And, that’s Michele Goodwin, and I’m signing off.

Hey, listeners, I thank you for tuning in for the full story. We hope that you’ll join us again for our next episode, where we will be reporting, rebelling, and telling it just like it is. For more information about what we discussed today, head to msmagazine.com. Look for us under Ms. Studios. Check out our other podcast as well.

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This has been your host, Michele Goodwin, reporting, rebelling, and telling it just like it is. On the Issues with Michele Goodwin is a Ms. Magazine joint production. Michele Goodwin is our executive producer. Our producers for this episode are Roxy Szal, Alison Whelan, Oliver Haug. We thank Mariah Lindsay and Emersen Panigrahi for research and digital assistance. The creative vision behind our work includes art and design by Brandy Phipps, editing by Natalie Paredes and Emersen Panigrahi, and music by Chris J. Lee.

Jeremy Alexander provides executive assistance.