What’s at Stake for 2026: Mark Joseph Stern on the Courts, Elections, and the Future of American Democracy
In a recent America at a Crossroads discussion, Slate senior writer and legal analyst Mark Joseph Stern examined how today’s most pressing legal battles will shape the 2026 midterm elections—and, more broadly, the future of democratic governance in the United States. Drawing from his decade of reporting on the courts and his deep understanding of constitutional law, Stern outlined the legal decisions, judicial dynamics, and political forces that will determine how Americans vote, who represents them, and how much accountability still exists for those in power.
A Judicial Landscape Poised to Shape 2026
Stern began by describing the dramatic shift in the federal judiciary over the past several years. Once defined by a swing vote—first Justice Anthony Kennedy, then a more ambivalent center-right bloc—the Supreme Court now operates with a reliable conservative supermajority.
That shift, Stern argued, has consequences far beyond legal doctrine. It directly touches election law, voting access, executive power, and civil rights—all areas that will influence both the conduct and the outcome of the upcoming midterms. The Court, he explained, has consistently greenlit policies favored by former President Donald Trump while repeatedly blocking major initiatives from President Joe Biden.
“We’re watching a Court that increasingly acts as an amplifier of the executive branch,” Stern said, raising the question of whether judicial independence can withstand the political pressures of the next two years.
Tariffs, Emergency Powers, and Political Optics
A major focus of the conversation was Trump’s unprecedented use of a 1977 emergency statute to impose open-ended tariffs on any country, for any duration, for nearly any reason. No previous president, Stern noted, interpreted the law in such sweeping terms.
Here, Stern suggested, the Supreme Court may find an opportunity to appear independent from Trump while still advancing his broader agenda. Striking down the tariffs would address a widely unpopular policy—one opposed by economists, business groups, and trade experts—while allowing the Court to claim it is not simply rubber-stamping every White House action.
“If anything, blocking the tariffs could help Trump politically,” Stern said. “The Court may be saving him from his own worst instincts.”
Redistricting Battles That Could Reshape Congress
Stern then turned to what he called one of the most consequential arenas heading into 2026: redistricting.
He described the extraordinary situation in Texas, where the Trump administration pressured state lawmakers to redraw congressional districts using race as a pretext—resulting in maps that redistributed Black and Hispanic voters in ways designed to produce up to five additional Republican seats. A three-judge federal panel temporarily blocked the plan, but Stern warned that the Supreme Court may ultimately reinstate it, given its recent hostility toward voting rights protections.
In contrast, California’s voter-approved Proposition 50 is expected to withstand legal scrutiny because courts are far more reluctant to infer discriminatory intent from an entire state electorate.
Voting Access, Ballot Counting, and State Autonomy
Another major decision looming before the Court concerns whether states may count mail ballots that are postmarked by Election Day but arrive afterward—a practice used in more than half of U.S. states, red and blue alike. A lower court recently ruled that states cannot accept such ballots, but Stern described that ruling as legally flimsy and warned that the Supreme Court’s uneven approach to state election authority could endanger millions of votes in 2026.
“It’s an area where the Court has not been consistent,” he said, noting moments when the justices have deferred to restrictive state laws while undermining states that expand voting access.
Cultural Rights and Mobilization: The Passport Decision
Stern also highlighted the Court’s rapid, unsigned approval—via the “shadow docket”—of Trump’s rollback of longstanding passport policies that allowed transgender people to update gender markers and provided an “X” designation for non-binary travelers.
The decision, he said, not only disrupts the lives of thousands of Americans but also signals an intensifying culture-war posture that may mobilize key voting blocs in 2026.
The Road Ahead
Despite the weight of these legal developments, Stern ended on a note of cautious optimism. He pointed to district and appellate courts across the country where judges continue to push back against unlawful or unconstitutional actions, even under immense pressure.
“These judges are standing up for the rule of law,” he said. “We are not past the point of no return.”
In the run-up to 2026, Stern urged Americans to remain vigilant, informed, and engaged—as the courts will play a defining role not only in the next election, but in the democratic future of the nation.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.