Earlier this month, the Supreme Court issued emergency orders twice in one week against Missouri’s GOP-friendly congressional map. The high court could soon issue a third such order before the month ends.
Here’s how — and why.
Missouri Republicans’ first loss came Sept. 8 from Justice Brett Kavanaugh, who is the justice assigned to handle emergency litigation from that region of the country.
State officials had sought urgent relief in Washington after Missouri’s Supreme Court blocked their desired map from being used in the November midterm elections. The state court said the proper map for November is the existing one that was passed in 2022, not a new one passed last year amid the Trump-backed nationwide gerrymandering push. The state court said that whether the new map can be used in future elections is up to voters to decide on a November ballot measure.
But soon after the justice’s order came out, a Trump-appointed federal district judge in Missouri, Stephen Clark, issued an order in a separate case brought by GOP congressional candidates, which said the state had to use the new map. That led challengers to the map, People Not Politicians and its executive director, Richard von Glahn, to seek to halt Clark’s order, which the full Supreme Court agreed to do on Sept. 10. Justices can choose to handle emergency applications themselves or refer them to the full court.
That order from the full court seemed to settle the matter — and perhaps it did, in reality — but there is now a third round of emergency litigation making its way to the justices.
8th Circuit revives Missouri GOP’s map bid
The latest round stems from a ruling in the federal case on Monday from a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, the federal appeals court that covers Missouri. All three judges on the panel are GOP appointees, and two are Trump appointees, including the recently confirmed Justin Smith, one of the president’s personal lawyers prior to his confirmation.
The federal panel said it wasn’t reviewing the Missouri Supreme Court’s ruling, which reached the opposite conclusion based on the state constitution. Rather, the panel said it based its decision on the U.S. Constitution, reasoning that it would violate federal protections to use the 2022 map for November because the state used the 2025 map for the August primary. (In its opposing ruling against the state, Missouri’s Supreme Court said the state’s own delayed actions led to the new map being used for the primary even though it shouldn’t have been.)
Importantly, for practical purposes, while the federal appellate panel instructed the federal district judge, Clark, to issue a new order requiring the use of the new map, it also put that new ruling on hold for a week to give the Supreme Court time to weigh in yet again. Von Glahn has already said that he is appealing back to the justices.
So, we don’t know exactly when Kavanaugh or the full high court will issue its next order. More importantly, we don’t know for sure that the court will rule against the GOP a third time.
But there is reason to think that it will. Indeed, because the election is already underway, there is even greater reason for the justices to refuse to intervene weeks later for a result that they could have imposed earlier this month.
No explanation from justices — yet
One reason that there is even the theoretical possibility of a GOP victory at this very late stage is that the Supreme Court’s order rejecting the Republicans earlier this month was unexplained. Still, the fact that it followed the (also unexplained) solo rejection from Kavanaugh and prompted no published dissent from any of the justices seemed to provide a strong signal that at least a majority of the court is no more interested in upending the midterm elections now than it was weeks ago.
And the fact that the new circuit ruling comes from a GOP-appointed panel does not necessarily reflect that it will find a like-minded audience with the Supreme Court’s Republican-appointed supermajority, one of the reasons being that the panel backed Republicans in the litigation earlier this month when it declined to lift Clark’s order requiring the state to use the 2025 map. The Supreme Court’s Sept. 10 order went the other way, lifting Clark’s order.
If the high court rules against the GOP yet again this third round, a key question will be whether the justices provide explicit guidance to the lower courts that could prevent another ruling like the one that came from the 8th Circuit on Monday.
However this ordeal concludes, the next steps will likely be prompted by von Glahn’s promised new emergency Supreme Court filing, and then how Kavanaugh and the court choose to handle it.
The post How the GOP could strike out at the Supreme Court over its Missouri congressional map appeared first on MS NOW.
