Justice Ketanji Brown Jackson accused the Republican National Committee on Monday of asking the Supreme Court to settle a question that belongs to Congress, as the justices heard oral arguments in Watson v. RNC, a case that could determine whether federal law prohibits states from counting mail ballots that arrive after Election Day.
At issue is a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted even if they arrive up to five days late. The RNC argues that federal law setting Election Day preempts that practice. Jackson pushed back hard.
"The worry is that you want this court to decide the case rather than have Congress do it."
The case carries weight beyond Mississippi. A ruling against the state's law could have implications for 13 other states and the District of Columbia with similar provisions. The Court is expected to issue its decision by the end of June, just months ahead of the midterm elections in November.
Jackson built her case around congressional silence, the Washington Examiner reported. She noted that lawmakers are currently considering the Make Elections Great Again Act, associated with Rep. Bryan Steil (R-WI), which would specifically prohibit the counting of late-arriving mail ballots. If existing federal law already does that work, she argued, why would Congress bother drafting new legislation?
"But Congress is today considering an election-related statute that would specifically prohibit this, which means that Congress probably didn't understand its existing legislation to do this."
She also pointed to the fact that Congress has been aware of states counting late-arriving ballots and has not moved to stop it:
"They are obviously aware that there are states that are doing this. And they have not spoken to it. They have not specifically precluded it. Now, you say that maybe that's because they assumed that Election Day in the federal statutes that we're examining from 100 years ago does the work."
It's a clever rhetorical maneuver. But it rests on a familiar progressive assumption: that congressional inaction equals congressional approval. That's not how statutory interpretation works. Congress fails to act on countless issues for countless reasons, from political cowardice to simple gridlock. Reading silence as endorsement is a convenient tool when you like the status quo and a dangerous precedent when you don't.
RNC lawyer Paul Clement was direct in response. He argued that the Court isn't legislating by interpreting whether existing law preempts state late-ballot provisions. It's doing what courts do: reading a statute and applying it. The fact that Congress might also act doesn't strip the Court of its interpretive role.
Clement suggested the pending legislation exists precisely because lawmakers don't know how the Court will rule and want a legislative backstop regardless of the outcome. He also noted the obvious:
"However this court decides this case, Congress has the power to revisit it."
That's the key point Jackson's framing obscures. A Supreme Court ruling on what existing law means doesn't close the door to Congress. It opens it. If Congress disagrees with the Court's reading, it can pass a new statute. That's the system working as designed, not the judiciary usurping legislative power.
Strip away the procedural language, and the case is about something simple: does Election Day mean Election Day?
The federal statutes at issue are old, roughly a century old by the Court's own discussion. But their meaning isn't ambiguous because of their age. Election Day was established as a fixed point precisely to create uniformity. The question is whether states can effectively extend that day by five, allowing ballots to trickle in nearly a week after polls close.
For conservatives, the answer has always been clear. Election integrity depends on finality. When the counting window stretches beyond Election Day, it creates opportunities for confusion, disputes, and the kind of post-election chaos that corrodes public trust. Every additional day ballots can arrive is another day results remain unsettled and another day for litigation to multiply.
The left frames this as voter access. But access to what? Every voter in Mississippi had until Election Day to cast a ballot, whether in person or by mail. The question isn't whether voters can participate. It's whether the postal service's delivery timeline should override a federal statutory deadline. Those are very different things.
The justices have heard several election-related cases during the current term. A majority appeared deeply skeptical during Monday's arguments, though the Court's questioning doesn't always predict its ruling.
Jackson's framing fits a broader progressive strategy: when the Court appears likely to rule in a way the left dislikes, recast the decision as judicial overreach. When it rules in their favor, it's principled jurisprudence. The inconsistency is the tell. Progressives celebrated the Court's willingness to find unenumerated rights in the Constitution for decades. Now, when the same institution is asked to read a statute plainly, it's suddenly doing Congress's job.
The Court will rule by the end of June. Whatever it decides, Congress retains the power to act. Clement said as much, and Jackson didn't dispute it. The question is whether the justices will read the law as written or treat congressional silence as a policy preference.
Election Day is either a deadline or a suggestion. The Court gets to decide which.
