Chief Justice Roberts Goes Postal on Trump’s USPS Rule

This evening, the Court finally decided United States Postal Service v. California. Very often, the procedural posture of a case is described as tortured. This posture is torturous for everyone involved. Here, I’ll offer a few high-level thoughts.

First, the majority opinion, perhaps to its credit, offers two sentences of analysis.

The Government is unlikely to succeed on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.

I say perhaps, because the Court reaches out to decide the merits on the emergency docket without any analysis. Justice Alito, joined by Justice Thomas, offers a thorough analysis of why he thinks the government wins on the merits. Justice Kavanaugh agrees with Justice Alito on the merits. The majority couldn’t be bothered to say anything more than a sentence. This stay application has been pending on the docket for about eight days, but this issue has been percolating for months. Surely, Chief Justice Roberts could have whipped up a few sentences to explain why Trump loses. He made up a few such sentences in the ballroom case. But that isn’t what’s important here.

All the Court had to write to deny the stay was that the equities did not favor emergency relief. Those are the grounds on which Justice Kavanaugh ruled. But  the Chief Justice didn’t want this case to come back, so he reached the merits. If there is no need to decide more, the Court should not decide more. Except when Trump is involved. That was the lesson from this past term. Regrettably, Justices Gorsuch and Barrett joined the Chief’s drive-by shooting of Trump’s policy.

Second, let’s turn to Justice Kavanaugh. It seems clear he will deny any application that urges sudden changes to election rules before the election. That was the lesson from his instant denials from the Missouri cases. At least he’s consistent. I think there were serious questions about whether the litigants from Missouri had appellate standing. Likewise, in the postal case, Justice Alito points out there are serious questions about standing. But on the emergency docket, when the equities are strong enough, the Court can just ignore standing. Where is Justice Barrett, the Court’s proceduralist on all these matters?

Third, there are only three votes for Trump on the merits here. Why did Justice Kavanaugh bother signaling his vote? In case after case, Kavanaugh finds a way to rule against Trump while saying he would rule for him if the facts were different. It’s very strange. Indeed, it’s almost the opposite of Roberts. Kavanaugh, having ruled that the equities cut against Trump, has no reason to say which way the merits go. If Roberts and Kavanaugh were on the same wavelength eight years ago, now they are quite at odds when push comes to shove.

Fourth, it is curious why Alito and Thomas said nothing in the Missouri cases. I thought of a passage from Mollie Hemingway’s excellent new book on Justice Alito:

Around the Court, Alito’s chambers are seen as the “Green Berets,” an elite unit that improves any position it enters. The justice often uses military lingo, explaining to his clerks, for example, that “I don’t think we need to take point on that one” means “it’s not worth sticking our neck out on that issue.”

I guess it was not worth Alito sticking his neck out in Missouri, especially since Kavanaugh was locked in and the issue would not return to the Court. But Alito thought it was worth taking point in the postal service case, especially since the litigation would continue in the lower courts.

Fifth, Justice Alito (as noted above) raises some important issues concerning standing.

To begin, the District Court issued a nationwide injunction based on claims asserted by several plaintiff organizations that likely lack standing. These organizations first claim a direct organizational injury because the rule supposedly thwarts their ability to educate members about voting. Yet this theory of injury is based on “‘a setback to the organization’s abstract social interests'” and an effortto “spend its way into standing simply by expending money to gather information and advocate against the defendant’s action[s].” FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 394 (2024).

Justice Gorsuch has made it his life’s mission to root out offended observer standing and related doctrines. Where is he on this issue? And Justice Barrett? AHM was a terrible decision, but the Court should apply it consistently on the right and the left.

Sixth, Justice Alito blames Justice Jackson, in part, for the delay:

Not only was the Government subject to months of premature litigation and a series of injunctions that this Court later determined were likely issued without jurisdiction, the Government had to wait nearly another full month for this Court to issue its decision so holding. Indeed, this Court spent from late July to the end of August drafting nearly 40 pages of opinions, including two dissents, despite the Government’s public notice that it would not publish a final rule while subject tothe injunctions, see 91 Fed. Reg. 44880, and its representation that it had a strong interest in issuing its rule in early- to mid-August to allow time to implement it. The plaintiffStates cannot claim the timing of the rule tilts the equities in their favor when they, and courts hearing their claims, are responsible for so much of the delay.

The reference to the 40 pages of opinions is a direct rebuke to Justice Jackson’s “Kafkaesque nightmare.” The Court should have just summarily ruled on the earlier version of the case so the fully ready case could come back to the Court. But the Chief Justice did not push the matter. He was content to let Justice Jackson take all the time in the world to write her dissent, and then claim the government loses on the equities, because not enough time would be left. You see why I am so hard on the Court. When they want to move quickly, they move quickly. When they want to take their time, they take their time. Much of the criticism of the emergency docket neglects to consider why different cases take different time. The Court is stacking the deck.

Seventh, the Trump Administration may have made a mistake by (repeatedly) rushing this case to the Court (over and over again). Maybe the safer posture would have been to litigate this case on a regular pace before the 2028 election. But I don’t pretend to understand the different considerations that go into rushing these issues. Ultimately, the government got only three votes on the merits, and in the process, set a precedent that these sorts of rules are subject to APA review. On the whole, this was a lot lost for nothing gained.