Lightning Strikes Thrice

The sun is setting shortly and I'm on the go, so my comments about the Missouri order will be brief.

First, the Court only addressed standing in a footnote. I am still not convinced any of the parties had standing but at least 5 members of the Court disagreed, including the Court's leading proceduralist.

Second, the per curiam noted that Justice Kavanaugh's prior orders had no noted dissents. I am still not convinced all three of these orders were unanimous. It may be that Justices Thomas and Alito did not think it was worth alienating Justice Kavanaugh.

Third, the point about this ruling not being a surprise was gratuitous. There were two summary ruling with no explanation. The prior case had serious AISG issues. The federal case did not. Apparently the prior cases were entirely about Purcell. Good to know.

Fourth, the Court says the merits here are unclear. I think this concession was the price of unanimity.

Fifth, this is an ironclad Purcell ruling that will be cited by the conservatives for years to come. The conservatives may see value in having this ruling as unanimous.

I was very wrong about the lighting docket here. I think the Justices felt they had to smack down the 8th circuit here.

Comments

[Sarcastr0]

I am still not convinced all three of these orders were unanimous.
...
I think this concession was the price of unanimity.

[John F. Carr]

On Purcell:

The Eighth Circuit’s application of Purcell was incorrect. Even though “federal courts should not impose changes close to an election, States are free to decide for themselves whether last-minute changes to an election are in their best interests”—subject, of course, to certain limited constraints imposed by federal law.

So Purcell is a best practice for federal courts, not a constitutional rule.

[John F. Carr]

The opinion goes on to say that if Purcell applied to state courts, the Missouri Supreme Court was not responsible for the timing of its decision. The Missouri Secretary of State was.

[JoeFromtheBronx]

Steve Vladeck referenced a 1990s case in which the Supreme Court (7-2) told the lower courts not to grant any more stays unless SCOTUS permitted them. It was a death penalty case.

This time there is an instruction that injunctions "are stayed absent any further order of this Court lifting such stays."

I previously offerred instructions a bit more blunt, tossing in a comment that the previous decisions were 7-2. Someone noted that nobody openly dissented. I supposed, in my imagined order, that someone silently did so.

I also wonder who wrote the opinion. It has some verve. I suppose a good option would be Roberts.