Justice Kavanaugh Rules Against Missouri Twice, Likely Without Reading All the Papers.
Missouri’s judicial clash has unfolded in a strangely surreal 48-hour stretch. Here’s a heavily condensed recap.
First, the Missouri Supreme Court held that the state must deploy the 2022 congressional district lines. The state court concluded that the 2026 maps carried the status of a legal nullity because roughly 3% of voters in Missouri placed the 2026 map validity on a referendum ballot.
Second, Missouri submitted an emergency motion for a stay on September 4. Circuit Justice Kavanaugh set a response deadline for September 7. Shortly after midnight on September 8, Missouri filed its reply brief. Around 4:30 PM, Circuit Justice Kavanaugh denied Missouri’s request in chambers. I suppose there was enough time for Kavanaugh to read all the briefing, but I am skeptical. There was no noted dissent.
Third, just moments after Kavanaugh’s ruling, Judge Clark of the Eastern District of Missouri issued an injunction blocking the use of the 2022 maps. This case was brought by Missouri voters and candidates. Later that day, an Eighth Circuit panel declined to issue a stay of the district court’s injunction.
Fourth, on the evening of September 9, the referendum backers filed an emergency application to stay the district court’s ruling. Circuit Justice Kavanaugh set a response for 10:00 A.M. on September 10—roughly 16 hours away. Over the ensuing period, Missouri filed a 51-page opposition, the groups and voters filed a 50-page brief, and the Solicitor General filed an 18-page brief. At about 10:30 A.M., less than half an hour after those briefs were submitted, the application was granted without any noted dissents.
Application (26A326) for stay presented to Justice Kavanaugh and by him referred to the Court is granted.
This 48-hour sequence is remarkable. A single matter went to the Supreme Court twice with full briefing, and Missouri came out on the losing end both times. While the first application was denied in chambers, the second was forwarded to the Court. Needless to say, none of the Justices read any of the reply briefs in the federal case. I suspect that Justice Kavanaugh discussed the matter with all of his colleagues at an informal conference Wednesday evening, even if by email. The decision had been effectively predetermined. It might have been nice to allow Missouri a reply, but frankly a lot of hours were wasted. If the Court intended to grant the stay, why go through the motions?
Here is my provisional interpretation. It appears Justice Kavanaugh clearly accepted the AISG arguments that the referendum supporters raised. (The Amars discussed these points on SCOTUSBlog.) On the merits, the notion that a minuscule share of voters in a state (3%) could secure a two-year free pass on any map is deeply troubling. I have heard numerous reports that most members of the Missouri Supreme Court were appointed by a Republican governor, but Missouri operates under the Missouri Plan—this is not necessarily a conservative court. After all, state courts interpret their own constitutions.
Then, when Judge Clark issued his injunction, Justice Kavanaugh perceived an attempt to circumvent his ruling. The facts were different in the federal case, the “unclean hands” argument was absent, and the AISG issue had faded. Yet the underlying theme remained: a federal court attempting to depart from a state supreme court’s reading of a state constitution. Did Justices Thomas and Alito share the view? Who can say. They did not express any dissent. They may have decided the dispute was not worth the effort, particularly if Justice Kavanaugh felt affronted. They might be saving energy for a different case.
Another takeaway is the speed at which these events unfolded, suggesting the Justices can hold emergency conferences for interim matters. Justice Kagan recently lamented the lack of opportunity to discuss a case before ruling. I wrote about this in my SCOTUSBlog piece on empowering the minority:
A common criticism of the emergency docket is that complicated cases are decided without fulsome deliberations. The justices usually don’t hold oral argument on emergency cases. Indeed, they may not even hold private conferences to discuss the outcome. In 2025’s Department of State v. AIDS Vaccine Advocacy Coalition, Kagan dissented from an emergency docket order. She wrote, “Per usual on our emergency docket, we have had to consider this application on a short fuse—less than three weeks.” Kagan added, “We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference.” At the time I asked why the court couldn’t schedule emergency docket conferences. I wrote that “Roberts could convene a conference on short notice,” but failed to do so, even as three of his colleagues demanded one. As things stand now, we can only surmise that the justices decided the entire matter over email or through the circulation of memos. Indeed, we learned from the leak of the “shadow papers” that the Supreme Court resolved the Clean Power Plan case in 2016 entirely through memos. This is no way to resolve questions affecting the national interest.
There was certainly a conference here, and it moved with speed.
