A quick update on the Missouri congressional districting case

Hurray once again for Justice Brett Kavanaugh and his colleagues, who just hours ago bench-slapped four lower-federal-court judges – one district judge and three appellate judges on the U.S. Court of Appeals for the 8th Circuit – in the latest and, we think, final major round of litigation concerning Missouri’s congressional districting map for the fast-approaching November election. (For more on the earlier rounds of this fast-breaking story, see Amy’s Sept. 7 explainer and our Sept. 9 column. For more on Kavanaugh’s latest intervention, see Amy’s latest piece.)

Shortly before the court’s most recent, and decisive, order, Vik composed his thoughts for a colleague who was trying to make sense of the dizzying events that have unfolded in the last 24 hours. What Vik wrote his colleague early this morning still applies now (several hours later), and we think Vik’s analysis may help our readers understand what likely lay behind the court’s most recent decision, which did not include any detailed reasoning.

Here is Vik’s take, which Akhil endorses entirely:

I am surprised, as I think most knowledgeable scholars of federal courts are, that the 8th Circuit left the district court ruling intact. The 8th Circuit panel expressed doubt over its own jurisdiction in the case because temporary restraining orders are not “ordinarily” appealable; but this is no ordinary situation, and when time is of the essence, TROs are, under Supreme Court caselaw, reviewable by higher courts. Perhaps the 8th Circuit acted under such strained conditions that it didn’t think things through very carefully.

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I do continue to expect that Kavanaugh and/or the entire Supreme Court will weigh in and undo the district court ruling. From my view there are four distinct problems with the district court’s action.

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First, its reasoning that to use different district lines for the general election would somehow violate the constitutional rights of those who voted in the primary election makes no sense. As I wrote on Sept. 7 even before Kavanaugh first denied Missouri’s stay, if it somehow violates the constitutional right to vote to have the primary voters’ wishes nullified, it would surely violate the right to vote far more to have the November election conducted pursuant to rules that have no legal legitimacy. HB1’s district lines lack the force of law, full stop. These lines cannot be used wrongly in November just because they were previously used wrongly in the primary. Two wrongs do not make (or vindicate) a right (to vote).

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Second, under the Purcell principle, federal courts aren’t supposed to interfere with state election plans shortly before elections. Purcell is not about whether state courts can act, it is about whether federal courts can. Therefore, the federal district court needed to let state courts and state election authorities do their thing.

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Third, and related, under a doctrine known as Rooker-Feldman federal district courts cannot try to review state supreme courts; only the U.S. Supreme Court can oversee a state supreme court. The district court here essentially undid an already final state supreme court ruling, and that is a no-no.

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Fourth and finally, the district court did not pay sufficient respect to Kavanaugh’s denial of the stay on Tuesday. Kavanaugh was presented with the very same – identical – claims that were presented to the district court, and he did not think they warranted interference with what the Missouri Supreme Court had done. While that decision by him may not be formally binding on lower federal courts, the Supreme Court has indicated that district courts should take account of what the Supreme Court has done in the so-called emergency relief docket. And the district court should have followed Kavanaugh’s lead. That’s why we call his court the SUPREME court and other federal courts INFERIOR courts.

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So I do expect the Supremes will act to properly respect the Missouri Supreme Court’s power to resolve what is essentially a question of Missouri state law. One never knows for sure what will happen, but the course I identify is what SHOULD happen, and I think Justice Kavanaugh’s actions thus far indicate that he understands the law in this area and follows it faithfully.

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[ H/T SCOTUSblog ]