“Any confusion stems from the last-minute decision by a state court to switch the congressional map.”

That’s the Eighth Circuit, lying in a per curiam opinion filed Monday night. In reality, the “confusion” was created by a scheme laid out by Missouri Republicans to keep this case away from the courts until — they hoped — the judiciary would decide it was too late to reverse those illegal actions. That may sound like a conspiracy theory, except it’s WHAT MISSOURI OFFICIALS PUBLICLY SAID THEY WERE DOING.

“As long as the status quo is the new maps, delay works in our favor,” Attorney General Catherine Hanaway explained back in January. Republicans had passed a midcycle gerrymander — as Donald Trump asked Republicans to do — to disenfranchise Black voters in Kansas City with a new map cutting the BBQ capital into pieces to give Republicans an additional seat. Under Missouri law, citizens opposed to the new map had an opportunity to gather a sufficient number of signatures to force the question onto the next ballot — and, importantly, the old map remain in place until after that ballot measure is voted upon. They did. But the plan that Hanaway described, involved the state refusing to certify or deny the petition for months, because until the state denied the petition, the issue couldn’t go to the courts. At the last second, Missouri denied the petition… the petitioners filed suit… and the Missouri Supreme Court ruled that the state constitution required using the old maps this cycle.

Claiming the state court caused this confusion is the classic story of the guy who murders his parents and begs the court for mercy as an orphan.

The Eighth Circuit’s decision last night — resurrecting a federal lower court order (itself illegal) — while at the same time acknowledging that the order should remain stayed until the U.S. Supreme Court can hear this case, is the tell. These judges know full, goddamned well, that the U.S. Supreme Court has functionally blocked this order TWICE already. But they don’t care and are frivolously wasting judicial resources on MAGA performance art designed to show the Trump administration that unlike the conservative justices, THEY would be willing to ignore the law to give him what he wants.

This, my friends, is not good behavior. This is impeachable behavior.

If you’re wondering how the Eighth Circuit got involved in a case settled by the Missouri Supreme Court and already given the back of the hand by SCOTUS, there’s more sordid procedural history at play. After the Missouri state court opinion, a different Missouri Republican brought a collateral attack in federal court, secured an order from a Trump-appointed judge — acting alone, another legal breach as a decision of this sort mandates a three-judge panel — requiring the state to use the new map in violation of the state constitution. Justice Kavanaugh, clearly thinking “the fuck are these guys thinking?” referred the matter to the full Court, which immediately responded — without noted dissent — that Missouri Republicans need to shut up and use the old map.

That should’ve been the end of it, and yet the Eighth Circuit decided to engage in a little fairy tale judging and write up an opinion based on the premise “what if we could just ignore the Supreme Court?”

At last week’s argument, Judge James Loken announced that the Supreme Court had told the panel, “Get to work!” He added a statement of method worth holding onto: “I learned long ago not to try to predict what courts mean, just to read what they say.”

Literacy is a crisis in America.

Because while Loken is correct that the shadow docket order (sorry, the “non-transparency docket“), stayed the TRO “pending the disposition of the appeal in the United States Court of Appeals for the Eighth Circuit and disposition of a petition for a writ of certiorari in this Court,” context is the soul of reading. “AND” in that sentence was chosen deliberately, because while it left open the concept of the Eighth Circuit trying to write its own opinion, the Supreme Court explicitly told the lower courts that, whatever they chose to do, the order would stay dead until the Supreme Court could hear it again. Since the Supreme Court allows parties 90 days (with 60 days worth of extensions), the justices were telling the Eighth Circuit that this was decided until long after the election.

This is the language of a Supreme Court stay. The Eighth Circuit either doesn’t understand their own branch of government, or they didn’t care. Your money should be on the latter.

Having rolled up their sleeves to write fan fiction for Donald Trump, Loken and Judge Justin Smith — Trump’s former personal lawyer — sent the case back with instructions to convert the TRO into a permanent injunction requiring the 2025 map. (Judge David Stras would have tossed the appeal on standing and never reached any of this.) Professor Steve Vladeck explains why that matters:

Time is too short to get into all the ways in which this move is procedurally bananas, but let’s just say that I’m unfamiliar with any prior case in which a court of appeals, on a TRO appeal, ordered the district court to enter permanent injunctive relief. (One might say the Eighth Circuit is “Fifth Circuit-ing,” but I can’t remember even the Fifth Circuit pulling this move.)

Along the way, the Eighth Circuit ordered the district court to put a stay on the permanent injunction until next Monday to allow the parties to appeal to the Supreme Court. This, of course, unilaterally rewrites the 90-day deadline imposed by the Supreme Court itself. The “one neat trick” is that converting this into a permanent injunction is now a different animal than the TRO, which the Eighth Circuit believes allows them to short-circuit the deliberate language of the SCOTUS order.

I’m sure the justices are going to love that.

The panel wrote that it feared that, without a new deadline, the referendum’s backers could take their full cert window and keep the Supreme Court “from considering the merits of this case until after Missouri has conducted the November 2026 general election.” You know… like the Supreme Court explicitly intended.

By the way, as a humorous aside, the Eighth Circuit dealt with the argument that the district court acted illegally by not convening a three-judge panel, as required by law in apportionment cases, by saying, “federal law allows the district court to ‘grant a temporary restraining order’ without referring the matter for convening of a three-judge court…” Which is all well and good until you ordered the lower court to make it permanent. Also, of note, those three-judge panels are supposed to be appealed directly to the Supreme Court, which the Eighth Circuit seemed to understand when it punted on this issue the first time by claiming it lacked jurisdiction… which it has now decided it has for the limited purpose of converting a dubiously legal order into a plainly illegal one in order to spit in the eye of the Supreme Court.

As Vladeck writes, “it’s a far more serious instance of a lower court acting in direct tension with the Supreme Court’s directive than any of Justice Gorsuch’s three examples of ‘defiance’ in his NIH concurrence last August.” That’s when Gorsuch seethed that lower courts were continuing to apply established caselaw rather than vibe out the meaning of shadow docket orders. The difference is that Gorsuch was mad at judges making decisions in other cases without treating an emergency order as gospel. This is the same damn case!

And that’s why that wink is so important. The Eighth Circuit knows this is all going back to the Supreme Court and that the Supreme Court will — almost certainly — slap it down again. They just wanted to put on the books that they tried to impose Trump’s will.

The legal reasoning in this opinion involves contortions more befitting Cirque du Soleil than a federal court.

The opinion argues that “this Court does not review the decision of the Missouri Supreme Court,” because it cannot. Then it spends a full section explaining that, under the Supremacy Clause, it is just deciding to void the Missouri Supreme Court under authority it does not have.

In an attempt to cobble together a substantive decision, the opinion suggests that switching maps after a primary violates the Constitution. It cites a clause of the Constitution for this as opposed to much caselaw… and there’s a reason! Because that premise is “flatly inconsistent with the Supreme Court’s precedents,” as Vladeck notes. Professor Justin Levitt goes into more detail:

There’s the radically underexplained nature of the 8th Circuit’s decision, which is predicated on an ostensible constitutional violation when voters in the general election didn’t get the chance to choose those candidates in the primary. Granted, that sort of circumstance is weird (though not unprecedented). But there are lots and lots and lots of other circumstances where this happens (e.g., a candidate dies or withdraws after the primary, or a voter isn’t a member of a political party with a vote in the primary, or a voter moves into a district from another district or from out ot state after a primary), and the 8th Circuit didn’t bother to explain whether any of those circumstances also violates a constitutional provision that doesn’t ever mention primary elections.

As is customary with opinions designed to disenfranchise Black voters, the opinion dresses up its opinion in the language of voting rights (“No right is more precious in a free country than that of having a voice in the election of those who make the laws”) and Equal Protection (“For the same reasons, Plaintiffs make a colorable argument that using the 2022 map in the November 2026 general election also violates the Equal Protection Clause”), by once again arguing that the illegal map was already used for the primary and cannot be fixed for the general. For good measure, the circuit judges cite the ever malleable Purcell doctrine for not messing with election laws on the eve of an election, even though — as the Missouri Supreme Court stated — the old map is the status quo because the new map “is not the law and has never been the law.”

Vladeck has “very little doubt” the justices will slap this down. One suspects the panel knows that too.

Article III judges hold office “during good Behaviour.” A bad faith effort to force the Supreme Court to make a THIRD decision rejecting your dumb theory ain’t it. For far too long we’ve conflated the good behaviour language with the “high crimes and misdemeanors” required to impeach the president. It’s a different standard for a reason — one that dates back to the “original” understanding under English common law that conservatives claim to love so much. In fact, some conservatives dug up those old English rulebooks when they wanted to impeach judges ruling against Trump executive orders.

But those judges applied existing caselaw in ways Republicans didn’t like. And, in some cases, they might have been wrong (or at least eventually overruled). Chief Justice Roberts said at the time that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” But those judges made rulings in good faith. And when explicitly overruled, they did what they were told from above. The judges here know or should know that the Supreme Court ended this charade. Moving forward with this farce after the second SCOTUS order is just underscoring and double-highlighting bad faith intent.

Judges honoring the letter of a superior court’s order while engineering around its obvious purpose aren’t exercising judgment. These aren’t even clever loopholes! It’s just sneering contempt for the higher court. And while America should hold the Supreme Court in contempt a lot of the time these days, there’s a difference between being a citizen and being a lower court judge bound to obey.

If “good Behaviour” means anything short of bribery, it means not treating the judicial hierarchy as an obstacle course. They’ll claim that they’re immune from being questioned over the merits of their decision, but this isn’t a merits decision so much as procedural gymnastics.

Experience has taught me not to expect the Democrats to pursue anything as radical as impeachment when it slaps them in the face. They’re unlikely to have the numbers in the Senate to remove judges for merely treating the federal court system as a playground to boost their GOP Q-scores anyway.

But maybe we can speak this into existence. It’s bad enough that we suffer through constitutionally odious decisions, but we don’t have to tolerate playing games just to set up an order that the judges know to be frivolous. This is, in fact, a different animal. We should recognize that.

Earlier: The Supreme Court Wouldn’t Save Missouri’s Gerrymander, A Trump Judge Did It Anyway
Supreme Court To Missouri Republicans: Shut Up
Eighth Circuit Gives Dead Horse Mouth To Mouth

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.

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