Sometimes, a Man Really Does Bite a Dog

No Medals, No Gold Stars

Justice Kavanaugh does not deserve having a star pinned to his chest for following the rule of law, even though following the rule of law in this instance was contrary to the immediate political interests of his fellow Republicans. Nor do the rest of the Court, including Justices Alito and Thomas deserve a medal for letting Justice Kavanaugh do what he did. 

That said, in our depraved day and age, a judicial result compelled by legal precedent and logic, against the political and ideological interests of a court, seems like a Man Bites Dog story, even though it should be a Dog Bites Man headline. 

Today, in “Justice Kavanaugh stands up for state constitutional law in the Missouri congressional case,” SCOTUSblog explains it all:

A crucial case decided yesterday on the Supreme Court’s emergency docket will likely mean that in the upcoming November election Republicans will win only 6 of 8 Missouri congressional seats in the new House of Representatives, rather than 7 of 8, as they were hoping for.

In this case, Hoskins v. von Glahn, Republicans wanted the Supreme Court to jump in and second-guess a state supreme court on what is essentially a matter of state constitutional law. It would have been both legally wrong and politically damaging for the court to have done so. Late yesterday, Justice Brett Kavanaugh spurned the poisoned chalice without explanation. No justice dissented, at least not publicly. (Kavanaugh in fact denied the request himself, without referring it to the whole court; he would not have acted unilaterally unless he knew a majority of the court wanted no part of this request.)

We applaud this outcome, and we offer a few quick points of elaboration.

1. Under both the U.S. Constitution’s Article I, section 4, and a clear congressional statute on the books, Missouri’s single-member districting lines for Congressional districts are to be determined by state law – including, of course, state constitutional law, as definitively determined by the state supreme court. The Missouri Supreme Court had already weighed in on the relevant state-law issues in Hoskins. (For the details, see Amy’s recent explainer.) There was thus no proper role for the U.S. Supremes at this point. Such is the square command of the court’s landmark ruling in the 2023 Moore v. Harper – a ruling involving congressional districting in North Carolina in which the court aligned with our amicus brief in that case (co-written with Steve Calabresi) and also built squarely on an earlier Roberts court precedent, Arizona v Independent Redistricting Commission, involving congressional districting in Arizona.
2. Some prominent commentators in 2023 opined that the Moore court had left the door open for U.S. Supreme Court intervention seeking to second-guess state supreme courts in a broad range of future congressional districting cases. We thought that these commentators misread Moore, and we said so back in 2023. Since then – consistent with our reading of the case, and contra the predications of these other commentators – the U.S. Supreme Court has yet to second-guess a single state supreme court state-law ruling involving congressional districting.
3. In Hoskins, the state supreme court was unanimous. It essentially ruled for Democrats even though a strong majority of that court had been appointed by Republican governors. This is what law looks like.
4. Here is another thing that law looks like: What’s sauce for a Democratic goose in Virginia is sauce for a Republican gander in Missouri. When sore-loser Democrats tried to use the Supreme Court’s emergency docket to second-guess the Virginia Supreme Court on a state-law issue in a recent congressional districting case, the Supreme Court shot down the Virginia Democrats unanimously and immediately. Yesterday, the court quite properly did the same thing on the same brisk timeline to Missouri Republicans.
5. The state of Missouri, via its constitution, has chosen to allow the people of the state, in certain specified situations, to weigh in directly on congressional districting before any ordinary state law changing the districting rules may go into effect. This is surely a choice Missouri is allowed to make under the 10th Amendment, the Republican Government Clause, Erie, and the Moore v. Harper line of cases. If the people of Missouri don’t like this system, they are of course free to change their state constitution. The state constitutional provisions at issue in Hoskins have a long and distinguished pedigree. The Missouri Constitution could clearly have prevented the state legislature from implementing ANY optional districting change absent two legislative votes separated by an intervening general election. Given that, the Missouri Constitution can surely take the lesser step of pausing new legislative districting rules in some situations, where opposition among the electorate is particularly intense and seemingly widespread, while allowing new legislative districting rules to take immediate effect in other, calmer and less partisan situations.
6. Under the so-called Purcell principle, the Supreme Court has admonished that federal courts should not upset state-law election rules and practices on the eve of an election, absent a very clear violation of federal law. …

Hooray for Justice Kavanaugh! Hooray for the court! …

But There is Someone in this Story Who Deserves Special Recognition

That would by one Denny Hoskins, the Missouri Secretary of State, who is under order to to show up in court tomorrow morning and explain why his ass should not be held in contempt of court.

I hope that Secretary Hoskins will be given the award that he so richly merits.