The Volokh Conspiracy

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. Over the past 25 hours, without the distraction of any screens, I've had some more time to reflect on the ruling. Here are some more thoughts.

First, I found the Court's discussion of standing in a footnote to be completely unsatisfactory.

We conclude that at least one of the applicants has standing on appeal.

There were two applicants. (1) People not Politicians and (2) Richard Von Glahn. The number of applicants with standing can be as low as one and as high as two. This isn't a guessing game. What does it mean that "at least one of the applicants has standing." Why doesn't the Court just tell us which of the two applicants have standing? Judge Stras's concurrence in the Eighth Circuit offered a compelling argument why neither party has standing. The Supreme Court can't just assume that one of the parties has standing, without telling us which one.

What happened here? I can think of a few possibilities. Perhaps the Court's conservatives did not agree on which of the two applicants had standing, so they dodged the issue. Or, the majority didn't really care whether any party had standing, so they used this conjectural language. I lean towards the latter. I think the upshot of Purcell is that when electoral chaos is on the horizon, jurisdiction no longer matters.

Second, the discussion of the merits is also unsatisfying.

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.

The Applicants are entitled to relief if they can make a clear showing that they are likely to succeed on the merits. Justice Jackson has made this point more times than I can count. But by the majority's own admission, the applicant don't even come remotely close to satisfying that burden. Instead, the upshot of Purcell is that when when electoral chaos is on the horizon, the merits no longer matters.

Third, the Court faults the Eighth Circuit for failing to understand the previous one sentence 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. But here, I have some sympathy for the Eighth Circuit. Judge Stras offered some remarks at a pre-scheduled event at William & Mary:

"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. 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. Depending on the case, he said, there are good reasons for writing more or writing less.

"I don't know where the happy medium is," he said.

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.

"It would have been better to have a little bit more, in terms of tell us what to do," Stras said. "What's off limits and what can we look at?"

My understanding of the prior rulings was that the Supreme Court rejected the federal rulings based on the AISG doctrine. The Amars and other praised Justice Kavanaugh for promoting a due respect for federalism. But now the Court tells us that the September 25 order is "consistent" with the earlier orders. Therefore, the earlier rulings were not about AISG at all. Perhaps the praise of Justice Kavanaugh was premature? Rather, the rulings were all about Purcell. Here, the upshot of Purcell is that when electoral chaos is on the horizon, the equities are the only valid basis for an emergency docket ruling.

Fourth, the Court took some gratuitous shots at the Missouri Secretary of State:

Moreover, in this case, the Missouri SupremeCourt was not responsible for the late-breaking 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. 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. The Secretary nonetheless chose to proceed with the 2025 map for the 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. But the Court simply accepted one side's statement of the facts. Again, the upshot of Purcell is that when electoral chaos is on the horizon, the Supreme Court will settle disputed facts on the emergency docket.

Indeed, the Court showed disrespect for a sovereign state by giving only 14 hours to submit a reply, and then taking two whole days to prepare a five-page opinion. There was a lower-court stay in place so there was no need to make Missouri pull yet another all-nighter--especially since it was clear that relief was already going to be denied. I think the Justices were annoyed here, and just didn't care.

This ruling is unsatisfying in so many regards.