Below is my column in The Hill on the latest controversy from the chambers of Judge Indira Talwani. While the court could be upheld in halting the executive order on mail-in balloting in this case, Talwani is one of a number of jurists who have been habitual blockers of executive reforms and policies. Talwani has been criticized in the past as something of a one-stop option for forum-shoppers. Her record reaffirms the rationale for justices in using the emergency docket, or so-called “shadow docket,” to deter gaming the system.
Here is the column:
This week, the Trump administration found itself in a familiar position: facing an injunction from Judge Indira Talwani of the U.S. District Court for the District of Massachusetts. Indeed, it had just secured an order from the Supreme Court on its emergency docket lifting her earlier injunction on the U.S. Postal Service requiring voting lists to confirm U.S. citizenship.
The case against the executive order on mail-in ballots has reasonable arguments on both sides, although (as I have said previously) the challengers are likely to prevail in defeating the rule or at least delaying the policy until after the midterm elections. The Constitution gives states the primary responsibility over “the times, places, and manner of holding elections.”
However, the U.S. Postal Service is a federal agency, and the federal government does have a role in the funding and regulation of federal elections. More importantly, the Trump administration is arguing that it is not barring mail-in voting but merely imposing “modest informational requirements.” Non-citizens cannot vote in federal elections, and the new rule “does not displace a single state election law. And it need not and should not prevent a single voter from voting by mail.”
The controversy over Talwani is not necessarily the merits of her decision that the rule convenes the constitutional framework. Indeed, the Supreme Court did not rule on the merits and could well rule in favor of her interpretation. The controversy is the pattern of sweeping injunctions by Talwani and a few other judges.
Litigants have been accused of forum-shopping by going to liberal, Democratically appointed judges to prevent Trump policies from being implemented in a wide array of areas, including immigration, elections, reduction in government bureaucracies, and foreign aid.
Like her colleague in Boston, U.S. District Court Judge Brian Murphy, Talwani is viewed by many as a one-stop-shop judge for forum-shopping. Both have issued hair-trigger injunctions, and both have been repeatedly reversed.
Talwani was reversed on Aug. 24 for imposing an injunction against the mail-in balloting policy. Her injunction was taken to be premature and without a legal injury, since the administration had not issued a formal rule. The truth is, the challengers had her at hello. She did not wait for a showing of a cognizable injury before issuing another injunction, because the decision appeared made before the case hit her own docket.
Previously, Talwani showed the same inclination in other cases. For example, she issued an injunction against revoking the humanitarian parole program for hundreds of thousands of immigrants from Cuba, Haiti, Nicaragua and Venezuela. Her order was lifted on appeal.
She also issued an injunction to stop the Trump Administration from defunding Planned Parenthood. That order was also set aside on appeal.
Regardless of the outcome of this latest injunction, Talwani has offered the strongest case in favor of the expanded use of the emergency docket, also known as the “shadow docket.” Liberal law professors and litigants have bewailed the expanded use of this docket at the Supreme Court to resolve cases without the need for a long briefing and oral argument. However, judges like Talwani have created legitimate concerns over the use of the appellate system to slow or freeze new policies. This is why the “shadow docket” has become more prominent.
This year, confidential memoranda were leaked from the court on the use of the emergency docket and published by the New York Times. It was only the latest such strategic leak from a court that was once the paragon of confidentiality and civility.
The internal exchanges of the justices were illuminating as to the majority’s underlying reason for allowing this fast-track review. The immediate issue was a move by the Environmental Protection Agency to impose unlawful regulatory burdens on electric utilities despite a countervailing earlier ruling in Michigan v. EPA. Chief Justice Roberts believed (as did many) that the EPA was using the ongoing litigation to force utilities to spend billions of dollars to comply with new regulations that the Supreme Court had already rejected.
“In other words,” Roberts wrote, “the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law.”
As with the national injunctions that plagued the Trump administration in its first year, this tactic was all too familiar. Litigants would go to liberal judges in Washington, Boston, and other blue cities to secure injunctions that would take years to fully litigate. That approach effectively allowed individual judges to pursue their own preferred policies or to prevent a president from carrying out promises made during an election. At most, the president might have a year left after these cases slogged through the conventional appellate process. It is an administrative version of the old adage that “justice delayed is justice denied.”
What concerned the justices was that many of these injunctions directly contravened earlier precedent, exposing the cynical purpose of these orders. For a president to be able to carry out major changes, he had to run a gauntlet of hundreds of judges, any one of whom could effectively negate reforms. In response, the Supreme Court ramped up the use of the emergency docket and cracked down on national injunctions, quickly reversing the rapidly increasing number of injunctions against the Trump administration.
With the midterm elections rapidly approaching, the odds favor challengers in either running out the clock or prevailing on the merits on the mail-in ballots. But Talwani and some other judges have reinforced suspicions of the Roberts court that some courts are willing allies of partisan groups in seeking to gum up the system.
Ironically, Roberts is one of the most likely conservative justices to be concerned with the Trump administration’s effort to force election integrity reforms on the states. Either way, it is the shadow of these judges, not the docket, that is casting the most ominous concern for many of the Supreme Court justices.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
It is clear that these activist Judges need to be impeached and removed, but Congress is doing no work period.
It doesn’t happen in a vacuum. GOP/ADF shop their cases too.
Really? Do tell
Pretty rich coming from the Professor literally the day after the NYT’s piece on Judge Reed O’Connor and the Northern District of Texas. Compared to the forum shopping Professor Turley notes with Judge Talwani, in Texas, litigants (including the Trump administration) can literally pick the individual judges they want in what amounts to judge shopping.
The District of Massachusetts does not allow for individual, predictable judge-shopping in the way the Northern District of Texas does. The Northern District of Texas has actively refused to adopt the Judicial Conference’s anti-judge shopping policy. Cases are routed by geography simply by filing paperwork in the proper courthouse. In MA, civil cases are randomly assigned district-wide.
Professor Turley, which district is more problematic?
https://www.nytimes.com/2026/08/30/us/politics/texas-judge-trump-agenda.html
Almost every Turley column is intended to counter-program some major news story or some prominent piece featured in the NYT or WaPo.
I saw that piece on Reed O’Connor and knew immediately which story Turley was countering today.
Your chances of getting a cons judge in Ma is 0.0%
NDTX in fact does a random draw- your facts are wrong.
So your playful idea that judges are randomly assigned is irrelevant in MA. Filing in MA is filing w a partisan judge.
11 of 11 active District of Massachusetts judges are Democratic-appointed, and 0 are Republican-appointed.
Easily disproved.
George HW Bush appointed Nathanial Gorton.
Reagan appointed William Young and Douglas Woodlock
George W Bush appointed F. Dennis Saylor IV.
“In MA, civil cases are randomly assigned district-wide.”
That’s either ignorance or a lie.
It it’s the same case or a related one, the case is assigned to a particular judge — which is what happened in this instance.
The rest of your comment is a childish deflection and ad hominem.
Of course the “same case” would be assigned to the judge overseeing that case. I don’t understand your comment. As for a “related one,” that is rather imprecise. There is nothing in the way MA assigns case that says, “All Defamation cases go to X judge!” What are you talking about?
Any support for that? Tell me, if I sue for defamation, who will I get in MA?
My comment is obvious. It explains why there are so many injunctions from Talwani. The judge shopping is the Mass. District, which is overwhelmingly D judges.
Your feigned ignorance is cute.
Turley: you really ought to be ashamed of yourself, spewing the MAGA gospel here. You fail to address the core issue: what role, if any, does the Constitution give the Executive Branch in regulating the time, manner or place of elections? The answer is: NONE, NIL NADA, ZIP–and you know it. Per the Constitution, states control the time, manner and place of elections, and Congress can make some laws involving elections, but the Executive Branch has NO authority to do anything regarding elections or the time, place or manner of voting.
Rather than admit this truth, Turley goes on the assault against the Judge who CORRECTLY granted an injunction against Trump’s illegal Executive Order, which does not prevail over the Constitution. In MAGA world, any judge who rules against Trump is bad, politically-motivated and criticized. It’s one thing for a maligant sociopath to do this, but it’s quite another for a “law professor” to criticize a judge who is RIGHT based on the clear mandate from the Constitution. Trump ordered the USPS to require states to identify and provide a list of elegible voters, and for the USPS to refuse to deliver ballots for voters who aren’t on that list, and/or that didn’t meet some arbitrary standard for bar codes or other formatting, regardless of what the individual state election officials determined their ballot envelopes should look like and who can receive one. Up to 1/3 of voters cast their ballots by mail in this country. In some states, mail ballots go out this week. Turley you KNOW that under Federal law, the USPS may NOT refuse to deliver properly-addressed mail to an existing address for which the correct amount of postage has been paid. USPS regulations do NOT trump the Constitution.
The real kicker here is the reason–Trump is still smarting from his 2020 election loss, in which same-day, in-person ballots had him leading, but when mail ballots started to be tabulated, his “lead” evaporated. Trump, who because of his mental illness, can never be wrong, must get revenge–try to eliminate or curb mail or absentee voting. Trump can’t stop lying about voting by mail being inherently untrustworthy–all without any evidence, other than the fact that he lost, which every poll predicted would happen. He doesn’t have the votes in Congress to ban or curtail mail voting, so King Donald does what he always does–issue an “Executive Order”–which is meaningless, just as the Judge held.
One of the most-shameful parts of this piece is Turley anointing Trump’s hissy fit as “reasonable”–it is NOT “reasonable”. Turley also tries to imply–to the MAGAs here that he knows watch MAGA media and are, therefore, not very knowledgeable–that Judge Tawani was “wrong” for issuing the first injunction. She was not WRONG—the injunction was reversed for ripeness reasons–the USPS hadn’t promulgated specifics yet, so her ruling was deemed premature–not WRONG. Once they did publish the regulations, she enjoined the Executive Order again. Even Turley had to admit that Trump is not likely to win because the Executive Branch has NO voice in the time, manner, and place of elections. Voting by mail is a “manner”of voting. Turley tries to make a weak argument that “…the federal government does have a role in the funding and regulation of federal elections.”–He fails to identify what ROLE the “federal government” has or try to argue that the federal government can order states to produce lists of eligible voters for it to vet before they can vote by mail.
Turley also accuses those of us who like what the Constitution provides about control of elections of “forum shopping”. What a joke! Trump’s DOJ forum shops all of the time–that dim bulb down in Florida who refused to allow Trump to be brought to justice and those losers in Texas are prime examples.
Um, Trump just learned from your favorite president Obama that if Congress can’t or won’t act he has a pen and a phone.
gigi, your ignorance is only exceeded by your blatant stupidity. Not only does the federal government supersede state law in many regards, but also oversees states in ensuring the requirements of 52 USC Ch. 205: NATIONAL VOTER REGISTRATION, in particular, see (3) and (4) below:
” (b) Purposes
The purposes of this chapter are—
(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;
(2) to make it possible for Federal, State, and local governments to implement this chapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;
(3) to protect the integrity of the electoral process; and
(4) to ensure that accurate and current voter registration rolls are maintained.
https://uscode.house.gov/view.xhtml?path=/prelim@title52/subtitle2/chapter205&edition=prelim
What did the American colonists say to the British monarchy?
“We’re taking the colonies.”
How much —— are actual Americans going to take from these unassimilable, sacred cow, affirmative action, anti-American, anti-Constitution, past-and-present illegal alien foreign invaders?
EVERY Judge that is overturned on appeal gets ONE bite! On their SECOND overturn, it is OBVIOUS that they do NOT understand the LAW and should be REMOVED, WITH PREJUDICE! Every judge that lets a multiple offender free and they reoffend, that Judge should be held liable!
The Supreme Court needs to more actively assert administrative oversight over the lower courts. I’d like to see a 3 strikes rule for judges. Getting reversed on appeal should be viewed as a performance issue (the judge got the law wrong). Get reversed twice in a given period of time (say 5 years) and the judge is placed on probation. This should do two things. Put them on notice that their employment as a judge is at risk and restricts their caseload to prevent them from handling controversial cases. Get reversed 3 times in the same period of time and they’re removed from office. Assertively dealing with rogue judges should substantially reduce the need for the Supreme Court to take up so many case via the emergency docket (which should help restore normal order in the judicial branch).
Everyone in America–other than you MAGAs KNOWS that the SUPREME COURT is partisan. Most of us do not agree that when the SCOTUS reverses that the lower court judges “got the law wrong”. If there are any “rogue judges”, it’s the ones on the SCOTUS, several of whom lied about their position on abortion just to get on the bench.
The Supreme Court needs to neuter that judge by issuing an order prohibiting her from issuing any nationwide injunction.
The Supreme Court cannot change the law on the scope of jurisdiction of federal district courts, which does have the authority to issue nationwide injunctions.
Many (too many) Democrats are not just opposed to our Constitution. They’re opposed to constitutionality, period. Cynical obstructionism is encouraged. Assassination is celebrated. The ends always justify the means. They will never act in good faith in any system, even one they create.
They are a threat. If they get the power they crave, the problems they create won’t just be economic. They’ll be existential for anyone who doesn’t bend the knee.
Diogenes is Estovir.
Estovir is the Pfizer ™ for its mandatory mRNA antiviral jab.
Estovir generates reams of posts all day long just to fill space.
Diogenes – I agree. If they get the power to pack the Court, they get the power to interpret away all constitutional protections into meaninglessness. One idea that has occurred to me recently is that two can play at that game. Why couldn’t the Supreme Court, as a kind of legal inoculation, interpret the Article III, Section 1, to enshrine exactly nine Justices as the permanent number on the Supreme Court?
#WeAreEstovir
Sounds good to me.
Old Man and Diogenes are both Estovir staging a ‘conversation’.
Oddly enough I doubt they would do so. If the Conservative side is originalist, then they would not add anything not there in plain English. All the Constitution says is that the there will be a Supreme Court. Congress has set the number at least twice that I remember. Congress could raise the number as suggested, but I think it would be anathema to the country. Even plenty of Democrats do not seem likely to vote to increase the count. At this point we are closing in on 150 years at nine Justices. It could also backfire on Democrats and cost them even more.
Is it the content of their character? 🤔
The lack of content of their character, I think.
I won’t debate the legalities. I won’t question the process. I will simply state what tens of millions of us have determined on our own as observers of the judicial nightmare plaguing our nation. THE JUDICIARY IS A JOKE! It’s a place of games, played by lawyers and presided over by referees in robes. The Law, and the Judiciary that provides its venue, both represent the biggest scam in history. Created to provide Justice, neither can claim the noble role of protector of that essential element of society. Justice is secondary to political expediency and, as a result, is a casualty of war in the battle for political supremacy. To a growing segment of our people The Law and the Courts are indeed no longer worthy of our respect or obedience.
At some point this will be worked out. Except for a few reasons, I am not sure why voters cannot go to the ballot. I am not a fan of mail in vote, it is ripe for cheating. However, I am not so sure Trump wins on this case on the merits due to how the law is written. The funny part it is one vote every four years, not every election. In this case, both sides are playing games. Trump with the order and the Judge with the national injunction. While I appreciate the good Professors note of this Judge is overturned frequently, she may not be wrong on this case. Yet, her putting an national injunction in place is asking for it to be put on hold.
The Quiet Man is Estovir.
No, The Quiet Man is The Quiet Man only. I write under one moniker only on this site. However, I will take your comment with a grain of sand with the name Anonymous, which is shared by more than one on this site..
This is the issue professor Turley is avoiding, the Major Questions Doctrine (MQD). The Supreme Court’s conservative majority has repeatedly struck down executive agency actions where an agency tries to claim vast, politically significant powers without explicit permission from Congress (the Major Questions Doctrine).
Congress has never given the USPS the authority to regulate elections, design ballots, or enforce citizenship requirements. For the USPS to suddenly dictate that it will refuse to deliver ballots unless states conform to a new federal verification framework is the textbook definition of an agency exceeding its congressional mandate.
While the federal government can pass overarching election laws through Congress, an executive branch agency cannot use its logistical monopoly over mail delivery to backdoor structural mandates onto state election processes. If the USPS could refuse to deliver ballots based on its own internal regulations, a hostile administration could theoretically shut down mail-in voting entirely across any state it chooses, rendering the Elections Clause meaningless.
A state executing its own established election laws to distribute ballots is exercising its sovereign constitutional power.
Turley is hedging heavily on the side of the states while at the same time he’s trying to give SCOTUS and Trump something to justify their doomed vote by mail denial scheme.
So the Post Office simply must ignore fraud?Mail in ballots are the largest source of voter fraud in any election.The Post Office regularly goes after mail fraud in our legal system.Why must your pet project for fundamental transformation of a formerly somewhat reliable voting system be ignored?Because the basic premise for the increase in unverified mail in ballots is easier fraud?The rest of the argument is clearly camouflage.