The fight in Missouri has had a surreal 48 hours. Here is a grossly compressed summary.
First, the Missouri Supreme Court ruled that the state must use the 2022 congressional maps. The state court ruled that the 2026 maps were effectively a legal nullity because about 3% of voters in the state put the validity of the 2026 maps on the ballot for a referendum.
Second, Missouri filed an emergency application for a stay on September 4. Circuit Justice Kavanaugh set a response for September 7. Shortly after midnight on September 8, Missouri filed its reply brief. Around 4:30 PM, Circuit Justice Kavanaugh denied Missouri’s application 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, a few minutes after Kavanaugh ruled, Judge Clark in the Eastern District of Missouri enjoined the use of the 2022 maps. This case was brought by Missouri voters and candidates for office. Later that day, an Eighth Circuit panel declined to grant a stay of the district court’s injunction.
Fourth, in the evening of September 9, the group that supported the ballot referendum field an emergency application to stay the District Court’s ruling. Circuit Justice Kavanaugh set the response for 10:00 A.M. on September 10–that deadline was about 16 hours away. Over that ensuing period, Missouri filed a 51-page opposition, the representatives and voters filed a 50-page brief, and the Solicitor General filed an 18-page brief. Around 10:30 A.M., less than 30 minutes after those briefs were filed, 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 hours sequence is remarkable. A case went to the Supreme Court twice with full briefing, and Missouri lost both cases. While the first application was denied in chambers, the second application was referred 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 a informal conference Wednesday evening, even if by email. The order was baked. I suppose it was nice to at least let Missouri reply, but frankly a lot of hours were wasted. If the Court was going to grant the stay, why bother going through the motions?
Here is my tentative take. I think Justice Kavanaugh clearly accepted the AISG arguments that the referendum group raised. (The Amars discussed these points on SCOTUSBlog.) On the merits, it is extremely problematic if a tiny percentage of voters in a state (3%) can get a free two-year pass on any map. I’ve seen many reports that the majority of the Missouri Supreme Court are appointed by a Republican Governor, but remember Missouri is the home of the Missouri plan. This is not a conservative court. Alas, state courts get to interpret their own constitutions.
Then, when Judge Clark issued his injunction, Justice Kavanaugh saw an attempt to circumvent his ruling. It is true that the facts were different in the federal case. The “unclean hands” argument was not present, and the AISG issue as gone. But the underlying premise was the same: an attempt of a federal court to depart from a state supreme court’s reading of a state constitution. Did Justices Thomas and Alito agree? Who knows. They did not signal their dissent. They may not have thought this fight was worth it, especially if Justice Kavanaugh was indignant. They might be saving their energy for another case.
There is another takeaway. The speed at which this all happened suggests the Justices are capable of holding emergency conferences for interim docket cases. Justice Kagan recently complained that there was no opportunity to discuss a case prior to ruling. I discussed this in my SCOTUSBlog post 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.
