The following is a lightly edited transcript of the June 30 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
Donald Trump lost a few big cases at the Supreme Court on Monday. He also won a big one. But judging by the extended eruption of rage that followed after those losses, those are the cases he really cared about. And you can see why. In one of those losses, the court allowed states to continue counting ballots that arrive after election day, and that probably cuts off one of the pathways he was eyeing to help steal the midterms. Yet at the same time, his one victory was pretty substantial and underscored again the long-term crisis that the Supreme Court has thrust us into by continually expanding the power of this president.
We’re getting into all of it with Lisa Graves, former counsel for the Senate Judiciary Committee, who writes about the Supreme Court. Lisa, good to have you on.
Lisa Graves: Greg, thank you so much for inviting me.
Sargent: So let’s start with Trump’s losses. The Supreme Court rejected his appeal of a $5 million verdict in favor of E. Jean Carroll after a jury found he’d abused her. It blocked him from firing Federal Reserve Governor Lisa Cook without cause. And in the biggest loss of all, the court upheld a Mississippi provision that counts mail-in ballots that arrive late, which will deliver a real blow to Trump and Republican efforts to invalidate mail ballots in this fall’s midterms in many other states. Lisa, what’s your basic reading on that last one?
Graves: Well, the Watson case is one where, had the Roberts court ruled in favor of Trump, it would have caused further chaos for the elections. We’re already seeing some of the chaos the Roberts court has caused through the Callais decision and related rulings this spring around the maps and the redrawing of maps in the former Confederate states. But in this instance, the Roberts court said no to the effort of the RNC and Trump to block the counting of ballots that are postmarked by election day but that arrive after.
And obviously, people don’t have any control over how long it takes for the mail to be delivered. And it’s been increasingly slow in recent years. And in numerous other ways, the postmark is the thing that counts. It’s the thing that can’t be altered. And so it’s a really reliable indicator of whether a ballot is on time based on the postmark. And the reality is that even though the press covers election night in the sort of horse-race coverage of who won and who lost, those are projections, because in reality, in many counties across the country, particularly in cities, it takes days to actually count and verify those ballots.
And also there’s an opportunity for people to cure their ballots if they cast provisional ballots, come in later that week with their ID if they didn’t have one with these new ID restrictions. And so it’s not unusual at all for the counting of ballots that are postmarked by election day, and the ballots that are cast on election day, to be counted in the days after the election. Trump, as you point out, was counting on the court siding with him and the RNC to try to disrupt the counting of those ballots.
Sargent: This loss really triggered Trump’s anger more than anything else. He exploded in an extended rant on Truth Social. He said this:
“In light of the tremendous loss in the Supreme Court today concerning Voter’s Rights, and the fact that ‘people’s’ votes are allowed to be counted LONG AFTER an Election is over, it is more important than ever to pass THE SAVE AMERICA ACT!”
Lisa, it’s very rare that Donald Trump admits that he lost, but there he admitted it. And I also thought it was useful that he said straight out that he doesn’t think people’s votes should be counted. That’s very helpful. I think that’s a very clear window into how he saw this.
Graves: Yeah, that’s right. Those in the law would call them admissions against interest, that he confessed those things. And this idea that he’s concerned about voters’ intent—if he were concerned about voters’ intent, he would try to ensure that those votes get counted when people mailed them on or before election day. But of course, as you point out, he also used this to pivot to his pressure campaign to try to get the SAVE Act passed, which is really about trying to save his presidency by making it harder for millions of Americans to vote.
A lot of women—not me—took their husbands’ names when they married. And so their birth certificate is not the same as their driver’s license. And the SAVE Act would make it harder for millions of American women to vote if they can’t show, at that time or in registration, that they are who they are, even if they’ve been voting for years or decades using either their driver’s license or their residence—regular voters.
And so that SAVE pressure point is something Trump has been obsessed with over the last few days in particular, because I think, again, he sees this as a way to try to control the outcome of the election, even though millions of Republican voters would also be affected by this deeply misguided and reckless SAVE Act.
Sargent: This ruling—what it does is, provisions like this one that allow the counting of mail ballots that arrive after election day will now remain in place in many states, including ones with big elections in them this fall. And this is the critical point. For instance, if Democrats win a couple of crucial House seats in California, their path to the majority becomes easier. There are a few other states, maybe New York and Texas, where the upholding of this provision could really matter in the midterms.
It’s obvious Trump and Republicans were hoping to use the slow counting of mail ballots to try to steal those elections outright. They were going to combine this counting of late-arriving votes with an effort to get the Postal Service to slow the delivery of votes, but that’s all been thwarted. That was a big chunk of their plan, wasn’t it?
Graves: That’s a great point, Greg. And we already saw Trump try to run this game plan in Los Angeles with the attacks on the process for counting ballots after the most recent elections in California, including in the mayoral race.
So we know that I think he was itching to deploy that same tactic to discredit elections everywhere by claiming that this is somehow fraudulent, or the results aren’t fair if the votes are counted after election day—even though, as you and I both know, votes are almost always counted after election day, because that’s how long it takes to count the votes.
Sargent: He really hates the counting of votes. I want to dwell a little bit on his use of this moment to push the SAVE Act. It’s really revealing. He responds to this loss on mail ballots by demanding again that Republicans pass voter suppression legislation. But the thing is, Lisa, he has explicitly said this voter suppression legislation is necessary to holding power in the midterms.
So he’s more or less confirming outright that he understood this mail ballot case as a way to block voters from delivering a negative verdict on his presidency, and as a way to block voters from having their say in the midterms. It’s just right out in the open. It’s striking how direct it is, isn’t it?
Graves: It really is. And it’s appalling, quite frankly. Because we’ve never—well, I guess we did in 2020—but before Donald Trump, we never had a president who sought to attack the idea of voting. Obviously, there was litigation around Bush v. Gore and whether those recounts could continue in the southeastern counties of Florida. But that was couched not as just hostility to counting these ballots.
And the thing about this particular circumstance is that, had the Supreme Court ruled in his favor, it would have cast in doubt early voting across the country. Because by setting election day as a particular day, Congress wasn’t intending to say that only ballots cast that day at the polling place could count. That’s not been the practice in the United States for literally more than a century. The first real major mailed ballots were during the Civil War, as the Civil War was going on. And so this is a long-standing part of American history. But Trump doesn’t care about history. What he cares about is power.
And he’s been joined in this attack on voting by mail, and on the potential outcome of this election, by Mike Johnson, who made really clear just the other day how, if Democrats were to win, there would be oversight of Donald Trump. And he said out loud something like, I’m your protection—we’re going to protect you from consequences. Which is also really morally appalling.
Sargent: Protecting you from accountability is what they mean.
Graves: Yes. And the fact is that that’s what representative government is about. That’s what House elections are about. Every two years we get a chance—or at least we’re supposed to get a chance—to do a course correction. And people seem to want a very real and significant course correction.
But between Donald Trump, Mike Johnson, and then the Roberts court’s rulings on Callais and the voting maps cases, what we see are Republican elected officials, or Republican-appointed officials, trying to squeeze and change the rules of the game midway to preserve Donald Trump’s power. Despite all of the extraordinarily outrageous things that Donald Trump has done on an almost daily basis, they seem determined to protect him at any cost—even the cost of representative government itself.
Sargent: Absolutely. But now we have to get to the bad part. The court ruled that Trump has the power to fire independent regulators, which is really going to increase Trump’s power over independent agencies and enable him and MAGA to bend agencies to his corrupt will more easily. The court carved out this exception for the Federal Reserve. Putting that aside for a sec, can you explain why this ruling on all the other agencies is such a disaster?
Graves: Well, it really is a disaster. And I wrote about some of this in my book, Without Precedent, which describes how John Roberts, the chief justice—who made an indelible image in people’s minds during his confirmation process, where he said he was just going to be a fair umpire calling balls and strikes—but in fact, he’s used the judiciary, used his post on the court, to advance some of these really fringe theories into law. And one of those fringe theories is the unitary executive theory.
It was invented during the Reagan administration. And we know that John Roberts was a Reagan revolutionary. He was at the top of the Justice Department at the beginning of Reagan’s term. He was then in the White House counsel’s office. Then he was in the George H.W. Bush administration as the political deputy in the SG’s office. And back then, what they were trying to do was to maximize presidential power.
And now, as a judge, what we’re seeing is John Roberts overturning decades, nearly a century, of legal precedent. Congress had passed this law saying that they wanted to make sure that there were independent agencies—that if the agency had sort of legislative components to its work, like the Federal Trade Commission, in terms of trying to implement Congress’s will of protecting against these mergers, and now they’re mega-mergers in the twenty-first century—that the president could not just fire someone without cause.
And the thing about what Roberts has done, along with his fellow Republican appointees in the Slaughter case, is that it has ripped away the power of Congress to create these independent agencies. And remember, the job of the president isn’t to invent the law. His job, the oath he takes, is to faithfully execute the law. Trump, for the most part, is not actually faithfully executing the law. From day one, minute one, after being sworn in, he started basically asserting that he could just change the law.
But in this instance, with mergers—this is an area where, like I said, going back to Franklin Delano Roosevelt, the Supreme Court had said, no, you cannot fire your predecessors’ appointees. It’s just not allowed. We want these agencies to do their job independent of who is the president. And what Roberts has done is change the law radically, dramatically, to empower Trump to have more power than almost any president in the twentieth and twenty-first century has had.
Sargent: Well, let’s step back for a second and really home in on that bigger point. Trump rages wildly over his losses and he attacks the court over them, but he actually got his way in the manner that’s probably most significant in the long term—not for these midterms, but in the long term. And I think that tension captures where we are, which is that Trump’s expectation is so strong that he’ll get his way from the Supreme Court, that the Supreme Court will continue to give him power, that he treats it as unusual and even outrageous when the court occasionally doesn’t do that.
But the big story is that Trump and his appointees on the Supreme Court, and the Republican appointees on the Supreme Court, have conspired to vastly inflate the power of the president and arguably of the court as well, at the expense of Congress.
Isn’t that the big story? That it’s just basically whittled away Congress and reduced it and diminished it while inflating the power of the presidency and inflating the power of the court itself. They’re like allied in this effort, it seems to me.
Graves: Well, you’re exactly right. What we’re seeing is an imperial president being created by an imperial court. What we have is a sort of cult of judicial supremacy where Roberts is basically acting like the kingmaker. He is the one who invented and orchestrated his fellow Republican appointees to come together to give Donald Trump unprecedented immunity from criminal prosecution for his so-called official acts, to allow him to commit crimes. That is extraordinary. It was unprecedented, and it has created the sense of entitlement of Donald Trump in this new term.
So it basically pardoned him when he was not in office, helped sweep him back into power by sending a signal to the American people that he did no wrong, in essence—could do no wrong, and then has empowered him.
And the bookend for that is that this court, through the shadow docket, has ruled in Donald Trump’s favor 90 percent of the time, while the lower courts of different presidential appointments have been ruling against him on a lot of these issues, because they are contrary to the Constitution, to statutes, regulations, legal precedents, and contracts in many instances.
And so what we see here is a Supreme Court majority, six to three—five of them served in the executive branch. They cut their teeth trying to expand and defend presidential power. And now they’re using their posts on the Supreme Court to expand presidential power from the bench, to invent new rules and ignore long-standing precedents to do so.
And in doing so, they also are carving out for themselves this notion that they are the deciders. They are the real people in power, and they are unaccountable to the American people. Which is why I, and an increasing number of my colleagues, are supporting an all-of-the-above strategy on court reform.
Sargent: Well, that is an absolutely awful occurrence, what we’ve seen happen—the big-picture occurrence. I just want to be sure we don’t take away from the importance of Trump losing on mail balloting, because we are going to need a Democratic Congress to challenge the state of affairs. And with these rulings, with the ruling on mail ballots, it has become somewhat more likely that we get that Democratic Congress, right?
Graves: Yes. The fact that they cannot stop ballots from being counted that are postmarked by election day—that is a big victory for the American voter. And it also takes place in the context of this court basically putting its thumb on the scale in these re-gerrymandered maps in ways that may already help Trump. But it’s not a done deal, because Republicans have lost a number of these special elections. And the turnout rates for Democrats versus Republicans in the primaries—there’s been a real disparity in terms of enthusiasm for Democratic candidates and lack of enthusiasm for some of these Republicans.
So, no matter the court’s intervention in general, people are clamoring for change. And this ruling by the Roberts court in the Watson case on mail-in ballots does protect the ability to have ballots be counted as they have been year in and year out for decades before Donald Trump became president.
Sargent: So here’s the bottom line then. With this imperial president getting enabled by this imperial court, as you put it, we’re going to need Congress to discover its power. And if Democrats can win one chamber or both chambers—which is hard but possible—they are going to have to use every last shred of power that they can lay their hands on. Lisa Graves, awesome to talk to you. Thank you so much for coming on. That was just great stuff. Beautifully put.
Graves: Thank you so much, Greg. It was a joy to be on your show.