On Tuesday afternoon, Justice Brett Kavanaugh did something that in almost any other timeline but this current hellscape would be unremarkable. Acting as circuit justice for the Eighth Circuit, he denied Missouri’s emergency bid to reinstate the congressional gerrymander that the state’s own Supreme Court had just tossed.
And if you, like most legal observers, assumed that was the end of the story, boy, oh boy, were you wrong! Because a Trump district court judge just told Brett Kavanaugh to hold his beer.
After Kavanaugh declined to intervene, Chief U.S. District Judge Stephen Clark, a Trump appointee sitting in the Eastern District of Missouri, did the intervening himself. Because when the Supreme Court says no, it is obviously up to a district court judge to meddle! Clark granted a 14-day temporary restraining order in a separate longshot suit brought by Republican Rep. Bob Onder and a couple of GOP-friendly voters, barring Secretary of State Denny Hoskins from using any map other than the gerrymandered one for the November election. Clark’s ruling has, pretty obviously at this point, been appealed to the Eighth Circuit.
So let’s take a look at this live constitutional crisis.
The state’s highest court has ruled that the gerrymander “is not the law and has never been the law.” A single federal district judge has now forbidden state officials from using the only map their own state Supreme Court says is legal. Hoskins promptly told local election officials that Clark’s order “takes precedence over the Missouri Supreme Court’s order.”
In a Tuesday-night order, Chief Justice W. Brent Powell directed Hoskins to appear in person Thursday and show cause why he shouldn’t be held in contempt for violating the court’s September 3 injunction — which predates Clark’s TRO by five days. Powell wants him to explain, among other things, why his September 8 email telling clerks to use the gerrymandered map wasn’t a flat violation, and how that injunction somehow stopped being in effect the moment the U.S. Supreme Court declined to touch the case. And the order hands Hoskins a pointed third option: if he won’t comply, he is to take no action on the congressional map at all until a court with actual jurisdiction to review a Missouri Supreme Court judgment — the U.S. Supreme Court, not a rando district judge in the Eastern District — says otherwise.
The legal commentariat was not charitable. Chris Geidner called the ruling “very bad on law” and described Clark as spreading chaos across Missouri the day after the Supreme Court pointedly refused to. Election law scholar Travis Crum was drier about it: Clark heard the Supreme Court’s message and “decided to plow ahead anyways.” Crum’s bet is that the Eighth Circuit will relay that message a second time, and that if the panel somehow misses it, Kavanaugh will be glad to repeat himself. Rick Hasen, who had already pronounced Missouri’s Supreme Court argument “weak,” greeted the whole spectacle by noting that the night was still young.
And of course it is a Trump-appointed, FedSoc-approved judge trying to make the MAGA midterm wishlist real. We’ve spent months watching Trump’s true-believer judges rule for the president at rates their merely conservative colleagues never approach and Clark just supplied the most vivid illustration yet.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
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