There was a moment at the Supreme Court this week that hit me hard.

It was on Monday, during the oral arguments before the justices in the case of Watson v. RNC. This is a very big case, in many ways.

It’s about whether Mississippi may count mail-in ballots that are postmarked by Election Day but arrive up to five business days later. Fourteen states and Washington, D.C., have similar laws. A ruling against Mississippi, expected by late June, would upend their election systems—just four months before the midterms.

As I was listening to the arguments (the Court streams them here), I sensed trouble for Mississippi.

The Constitution famously divides power over federal elections: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” It’s very clear: States are the primary setting for federal election procedures and regulations—but Congress has the final say over how the federal elections are run.

Congress.

Not the Supreme Court of the United States.

But from the jump in those oral arguments on Monday, you could tell that little clause in the Constitution wasn’t going to stop the conservative super-majority from handing yet another victory to the Party of Trump. I wasn’t that surprised, to tell you the truth. But there was something in the air of these arguments that bothered me, something amorphous at first, then thickening and brewing viscerally, and then about halfway through—out it came.

Justice Samuel Alito started talking about “a stash of votes.”

A stash.

It was a small phrase, almost tossed off. But it carried a toxic weight. The word does not belong to the vocabulary of democratic administration of the franchise; it belongs to the fever swamps of election denialism. A “stash” is something hidden, illicit, suspect. The implication is clear: ballots arriving after Election Day are somehow tainted—too many of them, from the wrong people, counted too late.

And there it was, in the Supreme Court of the United States.

The election laws, Alito said, are meant “for the purpose of combatting fraud or the appearance of fraud and some of the briefs have argued that confidence in election outcomes can be seriously undermined if the apparent outcome of the election at -- on the day after the polls close, is radically flipped by the acceptance later of a big stash of -- of ballots that flip the election or -- yeah.”

Yeah.

For what it’s worth, Mississippi, to my ear, had the better of the legal argument. Its law is straightforward: if a voter casts a ballot before Election Day, that vote counts—even if, through the ordinary delays of the mail, it arrives within a short, defined window afterward.

Congress has set an Election Day, yes. But states have long exercised broad authority over the mechanics of voting—before, during, and after that day.

There’s nothing radical or new about that. That’s our tradition, our historical process.

For generations, states have experimented with and adjusted their election systems—early voting, absentee ballots, military ballots, provisional ballots—all in the service of a simple democratic aim: to count the votes of eligible citizens who have acted in good faith to cast them on time. Congress has known this. Congress has never meaningfully objected.

And yet, listening to the conservative justices in this case, you would think Mississippi was engaged in some novel and dangerous scheme.

Three things stood out—struck me, really, with a kind of force that went beyond the legal merits.

The seepage of election denialism into the Court.

Alito’s “stash of votes” was the most vivid example, but he was not alone. Justice Kavanaugh raised concerns about post–Election Day counting that echoed familiar suspicions. Even Justice Barrett, more measured, seemed at moments to entertain the underlying premise: that something is inherently suspect about ballots counted after Election Day, even if they were lawfully cast before it.

The advocates fed this, too. Paul Clement, with his usual skill, and Solicitor General John Sauer—more subtly—touched the same nerve. The suggestion hovered in the air: our elections are already tainted with fraud. Or. more accurately, the concern about fraud.

But there is no election fraud of any consequence in America.

We know this because the Republican Party has proven it. For decades, the GOP has been searching high and low in every corner of our country for voter fraud. A presidential commission under Trump. The Department of Justice under Trump, armed with subpoena powers. Republican-controlled committees of Congress, with subpoena powers. GOP-controlled state legislatures and officials. Conservative think tanks, funded by billionaires. Fox News and the rest of MAGA media—all looking for proof of voter fraud. For decades.

The Heritage Foundation keeps a tab of proven cases of voter fraud, digging through election records going back to the 1970s. That’s billions of votes. Right now, Heritage’s grand total of proven cases of voter fraud stands at: 1620 cases. Out of billions of votes over decades. That’s 0.000162%, at least.

There is no evidence—none—that lawful absentee/mail ballots are a vector for fraud. (Donald Trump just voted by mail, for Pete’s sake.) What we are hearing instead is the rhetorical residue of years of Trump’s sinister flim-flam: a politics that teaches Americans to distrust the counting of votes themselves.

He has mesmerized the GOP with it.

But it is one thing for politicians and demagogues to traffic in that poison. It is another to hear its language, its assumptions, reflected from the bench.

We are by now well familiar with the conservative Court’s approach to history. Call it late-stage originalism.

It’s selective, tendentious, and deployed less as a genuine inquiry than as a justification for outcomes already preferred. The colloquial term for it is “cherry-picking.”

We have seen it in gun cases. We have seen it in presidential power cases. We have seen dissents—by Justices Breyer, Sotomayor, others—painstakingly lay out a fuller, more complicated (like all history), and more honest account of the American past.

In Watson v. RNC, the problem is even more glaring. Because here, the historical record is not murky or contested. It is overwhelming.

States have long made practical accommodations to ensure votes are counted. Ballots cast before Election Day have routinely been counted after. Congress has set a day for elections, yes—but it has recognized the diversity of our country, and without protest, stood by and watched these varied and pragmatic state practices grow for generations.

That is the “history.” Not a cherry-picked anecdote or a strained analogy—but a lived, continuous tradition.

And yet the Court seems poised to smash it. To discover, suddenly, a constitutional rigidity that neither the states nor Congress itself has ever recognized.

If that is not judicial activism, what is?

Read the transcript for yourself. Or listen to the recording, listen to the tone in that courtroom. There is something strikingly bloodless about the discussion.

Do they sound like they are talking about the most sacred act in a democracy? About citizens—real people—trying to have their voices heard? Or does it feel like an abstract exercise, a game of hypotheticals and line-drawing?

This is something I have worried about for a long time. And it is not just ideological—it is institutional, even biographical.

The justices of today’s Court are, almost to a person, creatures of the federal legal world. Elite law schools. Federal clerkships. Appellate practice. Service in the executive branch. Brilliant, no doubt—but cloistered.

They have not run for office. They have not administered elections. They have not lived in the messy, practical realities of democratic governance.

Contrast that with earlier Courts—think of the justices who decided Brown v. Board of Education. They were not just lawyers. They were statesmen. They had governed, legislated, negotiated. They understood, in their bones, how law lives in the real world. They had practical experience in the actual challenges governors, secretaries of states, even county clerks face in administering our elections.

But not today’s justices. And so a case like this—about whether lawful votes will be counted—can feel, in their hands, oddly detached from its consequences. It sounded to me like it’s syllogisms and theory to them. But it’s the life—and death—of democracy in the real world, in this country where President Trump openly wishes for laws that will create 50 years of uncontested MAGA power.

If the Court strikes down Mississippi’s law—and similar laws in other states—it will mean that ballots cast in good faith, on time, by eligible citizens, will be discarded. Not because those voters did anything wrong. But because the mail was slow. Or because life intervened in some ordinary way.

There will be thousands of such votes. Perhaps more. The Republican Party believes this will help them politically. Perhaps it will. Perhaps it will not.

That’s not the point. The point is what kind of country we are.

This is a nation that held elections in the middle of a civil war. A nation that has, over time, expanded the franchise and worked—imperfectly but persistently—to make the right to vote real. A nation that has trusted itself to count our people’s voices, even when it is difficult, even when it requires flexibility and good sense.

A can-do, pragmatic America. An America that believed it was big enough, strong enough, and brave enough to govern itself.

Listening to the Court in this case, you hear something else.

Suspicion. Detachment. A loss of faith—not just in these ballots or those ballots, but in the democratic enterprise itself.

The Court, it seems, does not quite believe in us anymore. And that may be the most troubling thing of all.

—Terry