Supreme Court Opinions: Mail-in Ballots, Federal Employees and More

**Brigid Bergen** (0:10)
It's The Brian Lehrer Show on WNYC. I'm Brigid Bergen filling in for Brian today.
Today was an opinion day at the Supreme Court, the second to last, as it turns out. They'll be back at it tomorrow. But today they released four opinions, some surprising, some expected, and we're going to focus on three of them now with Emily Bazelon, staff writer for The New York Times Magazine and a co-host of Slate's Political Gabfest podcast. She's also a senior research scholar in law at Yale Law School and the author of Charged, The New Movement to Transform American Prosecution and End Mass Incarceration. Emily, welcome back. Big morning.

**Emily Bazelon** (0:50)
Yes. Big morning. Thanks for having me.

**Brigid Bergen** (0:52)
Let's start with the first one they announced today. Justice Amy Barrett wrote for the majority in the mail-in ballot case, Watson vs. Republican National Committee, and ruled that the federal election does not conflict with state laws that allow ballots postmarked by Election Day from being counted at a later date. The court was split five to four, so it was a close one. For now, state mail-in ballots like here in New York don't have to change, is that right?

**Emily Bazelon** (1:19)
That's right. This is a five to four decision, and it's pretty surprising you have Justice Barrett, who's a conservative joined by Chief Justice Roberts, a second conservative, and then the court's three liberals.
What's happening here is that Mississippi gives voters a grace period for returning mail-in ballots. As long as they are postmarked by election day, they can arrive afterward. A lot of people thought that the court's conservatives were going to side with critics of this grace period and with President Trump, and say that the Constitution, or rather a couple of federal statutes from the 19th century, which created election day, conflict with this later-arriving rule for mail-in ballots. But the court did not say that. The court said that federal law does not prevent states from having these kinds of later-arriving mail-in ballots.

**Brigid Bergen** (2:13)
So interesting.
Our first segment, we spent a lot of time talking about the SAVE Act, which would of course impact how Americans can vote. It sounds like the ball is in Congress' court in this point, in other words.

**Emily Bazelon** (2:28)
Yeah, I think that's right. I mean, there are a lot of reasons from a kind of policy perspective to think about when ballots should arrive.
There are different kinds of arguments you can make. You can say, we want as many people as possible to vote. And so as long as the ballots are in the mailbox by election day, that's good enough. It's fine for them to arrive later. Or you can say, you know what, as long as everybody understands a rule that makes them, the ballots required to arrive earlier, that's also fine. It allows for more efficient counting, faster results. You know, we've been watching the slow results in California, for example. But what the court is saying is that this is up to Congress and the states. The courts are not going to come in and say that this 19th century law, that, you know, merely created election day, forecloses all these possibilities for mail-in balloting that states have been using for many decades.

**Brigid Bergen** (3:24)
That's fascinating. And of course, here in New York, we have a one-week grace period for those mail-in ballots. Listeners, do you have a question for Emily Bazelon on the cases announced today or on the Supreme Court and how it works? You can call or text us at 212-433-WNYC. That's 212-433-9692.
I think you're particularly interested in the last two cases they announced over officials President Trump fired. First, a member of the Federal Trade Commission, Rebecca Slaughter, and the next one of the Federal Reserve Governors, Lisa Cook. Chief Justice Roberts wrote for the majority in both, but the outcomes were different. Is that right, Emily?

**Emily Bazelon** (4:08)
Yes, that's right. Different results, different majorities, and some questions about whether these two results are in serious tension with each other. That was what Justice Barrett said when she dissented from the court's decision allowing Lisa Cook to stay on the board of the Fed. So it's going to, I think, take us all a while to get our heads around how the court has reached these different results.
In the case of the FTC where President Trump and other presidents now have power to fire agency commissioners, the court has embraced very muscular theory of executive power. Conservatives call it unitary executive theory. This is the idea that the executive branch really all comes down to the president. President Trump, you won't be surprised to hear, likes this conception of the presidency. The court is saying that when Congress required presidents to have cause to fire agency head, it actually violated the constitution system of separation of powers.