Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Friday evening, shortly before I signed off, I was able to dash out a very short post on my phone about the Missouri redistricting case.
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I → sign → case
Over the past 25 hours, without the distraction of any screens, I've had some more time to reflect on the ruling.
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I → have → ruling
First, I found the Court's discussion of standing in a footnote to be completely unsatisfactory.
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discussion → find → footnote
We conclude that at least one of the applicants has standing on appeal.
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one → conclude → appeal
What does it mean that "at least one of the applicants has standing."
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one → mean → standing
Why doesn't the Court just tell us which of the two applicants have standing?
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which → tell → standing
Judge Stras's concurrence in the Eighth Circuit offered a compelling argument why neither party has standing.
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party → offer → standing
The Supreme Court can't just assume that one of the parties has standing, without telling us which one.
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one → assume → standing
What happened here?
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What → happen → ?
I can think of a few possibilities.
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I → think → possibilities
Perhaps the Court's conservatives did not agree on which of the two applicants had standing, so they dodged the issue.
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they → agree → issue
Or, the majority didn't really care whether any party had standing, so they used this conjectural language.
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they → care → language
I lean towards the latter.
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I → lean → latter
I think the upshot of Purcell is that when electoral chaos is on the horizon, jurisdiction no longer matters.
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jurisdiction → think → horizon
On the merits, the Court's precedents have not previously stated that Article I, Section 2 requires a state to use the primary election map in a general election, and given that the equities heavily favor staying this late-breaking intervention, it suffices that the merits are not entirely clearcut.
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merits → state → intervention
The Applicants are entitled to relief if they can make a clear showing that they are likely to succeed on the merits.
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they → entitle → merits
Justice Jackson has made this point more times than I can count.
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I → make → point
But by the majority's own admission, the applicant don't even come remotely close to satisfying that burden.
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applicant → come → burden
Instead, the upshot of Purcell is that when when electoral chaos is on the horizon, the merits no longer matters.
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merits → matter → horizon
Third, the Court faults the Eighth Circuit for failing to understand the previous one sentence ruling:
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Court → fault → ruling
Given this Court's two prior orders in this litigation, our conclusion that this was error should come as no surprise.2 Consistent with this Court's September 10 stay order, we therefore must now stay the District Court's new September 21 and September 22 injunctions3 and the Eighth Circuit's September 21 mandate and September 22 order.4
I have written how some lower court judges have been deliberately obtuse while parsing emergency docket rulings.
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judges → give → rulings
But here, I have some sympathy for the Eighth Circuit.
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I → have → Circuit
Judge Stras offered some remarks at a pre-scheduled event at William & Mary:
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Stras → offer → William
"They release these short orders that are sometimes really unclear to the circuit courts," said Judge David Stras, an appointee of President Donald Trump who sits on the US Court of Appeals for the Eighth Circuit.
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who → release → Circuit
Stras spoke Saturday during an event hosted by William & Mary Law School in Williamsburg, Va.
Stras defended the court, saying that they're often in a hard position.
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they → speak → position
Depending on the case, he said, there are good reasons for writing more or writing less.
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he → depend → less
"I don't know where the happy medium is," he said.
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he → know → ?
He said it would've been "incredibly helpful" in the Missouri case for the justices to explain what, if anything, was left for the lower courts to decide after the Supreme Court stayed an order directing the state to use a redrawn map favoring the GOP earlier this month.
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Court → say → GOP
"It would have been better to have a little bit more, in terms of tell us what to do," Stras said.
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Stras → have → what
"What's off limits and what can we look at?"
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we → look → what
My understanding of the prior rulings was that the Supreme Court rejected the federal rulings based on the AISG doctrine.
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Court → reject → doctrine
The Amars and other praised Justice Kavanaugh for promoting a due respect for federalism.
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Amars → praise → federalism
But now the Court tells us that the September 25 order is "consistent" with the earlier orders.
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order → tell → orders
Fourth, the Court took some gratuitous shots at the Missouri Secretary of State:
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Court → take → State
Moreover, in this case, the Missouri SupremeCourt was not responsible for the late-breaking changes.
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SupremeCourt → break → changes
On the contrary, in an opinion back in May 2026, well before the primary election, the Missouri Supreme Court stated that the 2025 map would not take effect until approved by the voters in an intervening referendum, at least if the referendum petition was legally sufficient.
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petition → state → referendum
So in the several-month period before the August primary election, the Missouri Secretary of State was well aware that conducting the August primary election with the 2025 map carried significant risks.
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conducting → conduct → risks
The Secretary nonetheless chose to proceed with the 2025 map for the primary.
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Secretary → choose → primary
I don't have time to go into all the details, but let's just say this accounting of the facts is disputed by Missouri.
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accounting → have → Missouri
But the Court simply accepted one side's statement of the facts.
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Court → accept → facts
…and 4 more, not listed.
The Aporia
