An essay on SCOTUSblog contends that the Supreme Court is not merely a political actor but is actively constructing a form of power the Constitution never granted it. The author points to a series of election-related emergency rulings where the Court intervened in ongoing state processes, despite its own 2006 Purcell rule that courts should avoid disrupting elections already under way.
One example involves a challenge to President Trump's March 2026 executive order on mail-in ballots. A federal judge in Boston blocked the order, and the First Circuit twice refused to disturb that decision. In August, the Supreme Court stayed the lower court's ruling by unsigned order, allowing the order to take effect—even as Justice Jackson warned it could foment chaos before the midterms. Then in September, the Court declined to allow key aspects of the order to go into place, issuing only three sentences and a statement from Justice Kavanaugh that the order was likely lawful but the administration had acted too late.
The essay argues that this whiplash is not about deciding whether the president or states control elections. Instead, by issuing unexplained orders that shift outcomes without establishing legal standards, the Court is making itself the final arbiter of election rules—a role the Constitution assigns to states and Congress. The author notes that the Court has also asserted power to ignore trial-court fact findings, as in Louisiana v. Callais, where it held that a Voting Rights Act compliance plan was unconstitutional. The piece concludes that no single case reveals the pattern, but taken together, these interventions show a Court building undivided power for itself in a system designed to prevent it.