When electoral upheaval looms, everything else seems to lose its urgency.
Late Friday evening, just before signing off, I managed to post a brief note on my phone about the Missouri redistricting case. Over the last twenty-five hours, free from the lure of screens, I’ve had extra time to reflect on the decision. Here are additional thoughts.
First, I found the Court’s treatment of standing in a mere footnote to be profoundly unsatisfactory.
We conclude that at least one of the applicants has standing on appeal.
There were two petitioners. (1) People Not Politicians and (2) Richard Von Glahn. The count of petitioners with standing could be one or two. This isn’t a guessing game. What does it mean to say that “at least one of the applicants has standing”? Why doesn’t the Court simply indicate which of the two petitioners has standing? Judge Stras’s concurrence in the Eighth Circuit offered a persuasive argument why neither party has standing. The Supreme Court should not presume that some party has standing without naming which one.
What explains this? I can think of a few possibilities. Perhaps the Court’s conservative bloc could not settle on which of the two petitioners had standing, so they dodged the question. Or perhaps the majority didn’t genuinely care whether any party had standing, and used this speculative phrasing. I lean toward the latter. I suspect the upshot of Purcell is that when electoral chaos looms, jurisdiction becomes a non-issue.
Second, the merits discussion is likewise unsatisfying.
On the merits, the Court’s precedents have not previously held that Article I, Section 2 requires a state to use the primary-election map in a general election, and given that the equities strongly favor resisting a last-minute intervention, it suffices that the merits are not entirely clear-cut.
The petitioners deserve relief if they can show a clear likelihood of success on the merits. Justice Jackson has stressed this point more times than I can count. Yet, by the majority’s own admission, the petitioners do not remotely come close to meeting that standard. Instead, the essence of Purcell is that when electoral chaos is on the horizon, the merits cease to matter.
Third, the Court faults the Eighth Circuit for failing to grasp the preceding 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 noted how some lower-court judges can be deliberately obtuse when parsing emergency dockets. Yet in this instance, I feel some sympathy for the Eighth Circuit. Judge Stras offered remarks at a pre-scheduled event at William & Mary:
“They issue these brief orders that can be 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, noting that they often face a difficult position. Depending on the case, there are valid reasons to craft longer or shorter rulings.
“I don’t know where the happy medium lies,” he said.
He remarked that it would have been “t immensely helpful” in the Missouri dispute if the justices had clarified what, if anything, remained for the lower courts to decide once the Supreme Court stayed an order requiring the state to adopt a redraw that favored the GOP earlier this month.
“It would have helped to have a clearer directive—what’s off limits and what can we examine?”
My understanding of the earlier rulings was that the Supreme Court rejected the federal rulings based on the AISG doctrine. The Amars and others praised Justice Kavanaugh for elevating a respect for federalism. But now the Court indicates that the September 25 order is “consistent” with the earlier ones. That suggests the earlier rulings were not about AISG at all. Perhaps the commendation of Justice Kavanaugh was premature? Rather, the rulings may have centered on Purcell. Here, the result of Purcell is that when electoral chaos looms, the equities become the sole legitimate basis for an emergency docket decision.
Fourth, the Court directed some gratuitous digs at the Missouri Secretary of State:
Moreover, in this case, the Missouri Supreme Court was not responsible for the late-breaking changes. On the contrary, in an opinion issued in May 2026, well before the primary election, the Missouri Supreme Court stated that the 2025 map would not take effect until approved by voters in an intervening referendum, provided the referendum petition is legally sufficient. So in the several-month stretch before the August primary, the Missouri Secretary of State was well aware that conducting the August primary with the 2025 map carried substantial risks. Yet the Secretary nonetheless proceeded with the 2025 map for the primary.
I won’t go into every detail, but this recounting of the facts is disputed by Missouri. Still, the Court simply accepted one side’s account of the facts. Again, the upshot of Purcell is that when electoral chaos threatens, the Supreme Court will resolve disputed facts on the emergency docket.
Indeed, the Court appeared to show disrespect for a sovereign state by granting only 14 hours to submit a reply, and then taking two full days to draft a five-page opinion. A lower-court stay was in place, so there was no need to force Missouri into yet another all-nighter—especially since it was obvious that relief would be denied. I suspect the Justices were irritated here and simply didn’t care.
This ruling feels unsatisfying on numerous fronts.
