There is no coherent defense of the "Purcell principle" that can be rationalized with the Supreme Court's recent behavior in the AL and LA redistricting cases.
Thoughtful analysis like this is exactly why independent research matters. Understanding the reasoning behind legal and institutional changes is often more important than the headlines.
I particularly liked Steve Vladeck's statement: "A rule that can license a result and its precise opposite, depending on which way the partisan valence runs, is not a principle of restraint at all. It is unstructured discretion wearing the costume of restraint—and the longer the Court declines to explain itself, the more threadbare that costume becomes..."
Another way of looking at this Court's application of the "Purcell principle" is through the lens created by Justice Jackson in her recent dissent: this is Calvinball, where the rules change to benefit the players as the ball is in play.
It is the "whatever seems expedient to keep the Republicans in power" principle, given that this political party is behind the furthering of the far rights counterrevolutionary goals. This Court has bent over backwards to facilitate their consolidation of power. If they have any other principles. I can't find them.
Even after they've forced most people into subservient positions, they don't stop. I can understand a gnawing dissatisfaction in unaccomplished frauds like Trump, but there are some skilled and astute minds behind this movement: Charles Koch, for example. Fear of death?
If I may make a couple suggestions in reading. One is Alice Miller's For Your Own Good: Hidden cruelty in childhood and the roots of violence. A searing study that I have found just revelatory. Remarkable too how closely Miller's "poisonous pedagogy" parallels modern child-tortures like James Dobson. A second suggestion would be my latest substack "The Supreme Court as Partisan Elitists" if I not be overly tooting my own horn.
this court has shown somewhat less regard for lower courts than previous scotuses. could these decisions all be reconciled by a view that lower court findings of unconstitutionality are always "preliminary", and only a "final" (ie., scotus) ruling overrides purcell?
No, because the court simultaneously insulates itself against the (very forceful) criticism that it is inventing facts and law rather than listening to reasoned argument precisely by adopting the legal fiction that its oracular pronouncements are but "preliminary" assessments of which party is "likely" to succeed that, trust us, can definitely be resolved differently once our oh-so-open minds listen to the actual arguments and bother to read the record.
Ah the Fifth Circuit. When I was in law school at Georgetown, the most reversed Circuit was the Ninth. Our Crim Law professor suggested that the opening lines of cert petitions from the Ninth could be "This petition is on appeal from the Ninth Circuit. Moreover, there are additional reasons the decision should be reversed."
Is there some way for us to move back from the insanity created out of whole cloth (that include Purcell, History and Tradition, Major Questions, etc.) to a place where the Supreme Court, instead, relies on facts (established through lower courts rather than ignored at the highest court) and law?
The alternatives to invoking history and tradition in interpreting the Constitution are also problematic. For example, how broadly should we interpret the "liberty" guaranteed by the Fifth and Fourteenth Amendments? In our deeply polarized society, if we were to rely only on current social norms, we'd be caught in never-ending battles between two sides that each see the other as an existential threat. We are anyway, but that would only make things worse.
In any case, both Republicans and Democrats have used history and tradition to support their claims. I don't think it's unreasonable if it's done impartially (there's the rub).
This whole use of/non use of Purcell smacks of a total political bias of Republicans as a wholle. The deny use of a tradition or a law when it goes against them but uses it when it suits their purposes. As in the Merrick Garland decision by the Senate 9 months before an election being to close to make a nomination to the acceptance of Amy Barrett's nomination, was it just a week before the inauguration of trump? They use the same playbook on the Supreme Court--accept if you like, find a reason to reject if not.
I make much of the 5th Circuit's batting average during the current term. (Maybe the fact the Court accepted 10 cases from the circuit is as telling as the outcomes.) Back in the day, my friends on the Right ranted about the 9th Circuit, ignoring completely the fact that circuit size explained at least in part why so many 9th Circuit cases ended up before the Court. That explainer doesn't really exist here.
The explainer here is that the 5th Circuit is being cynically employed as a generator of rulings to which the Supreme Court can say "gosh, that's too far" and thereby preserve some semblance of balance in the statistics of which side wins. On the one hand, Republicans win on cases saying black people don't have the right to elect legislators; on the other hand, Democrats win on cases saying black people should be formally re-enslaved. Both sides!
To the adage “Justice delayed is Justice denied” should be added, “ Injustice accelerated is Injustice reinforced.” I also propose applying the phrase “Pretzel Logic” to describe the Supreme Court’s behavior and decisions. This was an overarching theme for a 1970s song and album by Steely Dan representing convoluted, illogical reasoning. Or perhaps “cart before the horse,” focusing on a result before properly considering the cause. In Chief Justice Roberts’ favorite baseball analogy, it’s a strike, now let’s check the boundaries of the strike zone.
Or is the principle that there are no consistent principles? Do most Supremes say or think that the law is what they decide it is today – although there may be differences of opinion whether that is superseded by what the President says it is today, i.e., his agenda, which may explain the few decisions in which the Supreme Court has rejected his position? And farewell stare decisis, instead neglegere quae decreta sunt (ignore what has been decided) depending on the occasion. Does the choice lie between rule by lawyers and rule by an autocrat/ dictator? I don’t think or hope so, provided more of us exercise our right to vote to stop and reverse the ongoing deterioration of US democracy, motivated by our increasing awareness of the need, and how to do so. We are being informed by the valiant consistent efforts of Professor Vladeck to educate us in his sphere of knowledge and expertise, as well as those of others in their fields of knowledge including science, history, geopolitics, economics, philosophy and others. After all, is not the idea that we, the people are sovereign, that which is the “exceptional” characteristic of the US polity, even though it has taken us a long time, and the process is still incomplete, for the term “people” to include all humans ?
Put more pithily, John Roberts is the Texas Sharpshooter Fallacy as applied to the calling of balls and strikes. We know where the pitch was; now let's paint the strike zone to ensure that it is what we want it to be.
Thank you for making the point more pithily than my longwinded attempt. Any way we can. - to modify a British term - "take the pith" out of someone who deserves it is worth explo/ting.
I think the "Purcell principle" is really two different principles under one name. The liberals' Purcell principle is simply that courts shouldn't make any changes to an electoral map shortly before an election. The conservatives' Purcell principle is that courts shouldn't *impose* changes to an electoral map *against a state's will* shortly before an election. But the conservatives consider themselves free to *unimpose* an electoral map shortly before an election (by vacating a lower court decision that imposed that map against the state's will).
I think that's another way to say that courts aren't allowed to enjoin legislature-passed maps ever. If they do, that will be overturned. And thus the courts can't check any legislatures to protect the Constitution and people's rights.
With the recent ruling in the Alabama case, I now strongly support a restructuring in the Supreme Court. The six are political hacks, only sometimes restrained by the constitution they should be embarrassed, but they’re not.
The analysis here is unpersuasive because it doesn’t actually grapple with the strongest argument on the other side: That compliance with Purcell is a necessary but not sufficient condition for a federal court to restrain application of a a state’s election laws. On that framing — i.e., treating Purcell as a *defense* to entry of an injunction that would otherwise be warranted to ensure compliance with federal law — the charge of inconsistency fades away. It’s plausible to treat Purcell as a reason to stay the 2022 injunctions (without engaging with the plaintiffs’ showing of likelihood of success on the merits), but not as a reason to maintain the 2026 injunctions once the Court concludes that the plaintiffs don’t have a likelihood of success on the the merits.
To be clear, one can question the Court’s application of Purcell in individual cases, or to question the necessity and wisdom of the doctrine more broadly. One could also try to advance a different version of the doctrine that would treat disruption/confusion caused by lifting an injunction as a reason to keep the injunction in place. I’m not commenting about those issues. But the inconsistency charge is unconvincing.
Has the Court ever made this argument or provided this as an explanation? If not, why should it even be credited? The onus should be on the Court to explain this, rather than for the masses to be left questioning why the Court ruled a certain way and for others to come to its defense for unexplained behavior.
Well this is exactly how Kavanaugh articulated the principle in the 2022 Alabama decision that Steve points to as an example of inconsistency: “federal courts ordinarily should not enjoin a state’s election laws in the period close to an election.” Nothing about that statement implies that Purcell requires courts to maintain an injunction in place after concluding that the plaintiff is unlikely to prevail on the merits.
As I'm sure you are aware, a Justice's concurrence with the grant of a stay is not an opinion of the Court, and so it only tells me how Justice Kavanaugh and Justice Alito see the matter.
Awesome analysis here, Professor. Without saying it in so many words, you have once again shown that the Court is, at present, an adjunct of the RNC. Despite the Chief's laments about "no Republican justices, no Democrat justices", the truth is plain to see. The majority ignores the lengthy, thoughtful work of the lower courts in finding Alabama's racial motivation and concludes "but the Republicans say it's just politics." Legitimacy is long lost.
The argument the principle has been applied consistently must rest on Kavanaugh's suggestion that courts should not intevene even when state legislatures "alter their own election rules in the late innings [as they will] bear the responsibility for any unintended consequences." That, if I understand the cases correctly, would square the circle. But that suggestion strikes me as remarkable and wrong. If a state legislature enacted a "late inning" change that was openly defiant of a recent Supreme Court decision, would the conservatives really stay their hand until after the election? Doing so would create a world in which the Court's orders could not be effectively enforced against any state that chose to take action during the Purcell window. (And I agree the principle, as articulated, cannot apply only to *lower* court intervention.)
Yeah, if you take that argument literally (and it is obviously not meant to be taken literally), states would simply have a perpetual get-out-of-the-Constitution-free button that could be pressed in every election cycle where the majority party enjoys legislative control (which, since we're talking gerrymandering here, may be a great many cycles indeed).
Can it really be the case that if a state, a week before the election, passes a new "only white people get to vote" rule, that federal courts are powerless to intervene until after the election? The idea is laughable on its face, and yet, if one takes Kavanaugh literally, that is the result that would flow. In reality if you confront conservatives about this they will hem and haw and say "well obviously we don't mean THAT," but of course there's no definition at all of what "that" is and in reality "that" just means changes which would benefit Democrats.
Re: "Can it really be the case that if a state, a week before the election, passes a new "only white people get to vote" rule, that federal courts are powerless to intervene until after the election?" Based on this latest ruling, I believe the answer is "Yes" as it pertains to lower federal courts. SCOTUS could still intervene.
While the Callais ruling isn’t that explicit—it doesn’t say only whites can vote—it does say, in effect, only white votes count. It’s as if all polling stations provided voters with two boxes: one red, one blue. And when voting closed, they drowned the blue box in the Gulf of America. The court has always seemed like a game of ‘tug-of-war’, with one or another justice occasionally switching sides to give the institution a veneer of fairness. Since Justice Scalia’s death, that veneer has been scraped off entirely. Justices Jackson, Kagan, and Sotomayor, valiant fighters that they are, have been unable to stop the plunge down Uncle Clarence’s rabbit-hole. The court hasn’t yet to hit rock bottom, but with each unprincipled ruling, their final destination, Wonderland, gets that much closer. At this point, the tortured arguments presented by the six Republican justices concur with Tweedledum’s pithy explainer: “Contrariwise, if it was so, it might be; and if it were so, it would; but as it isn’t, it ain’t. That’s logic.”
Thoughtful analysis like this is exactly why independent research matters. Understanding the reasoning behind legal and institutional changes is often more important than the headlines.
Of course, it's not the reasoning, but the results we have to understand.
I particularly liked Steve Vladeck's statement: "A rule that can license a result and its precise opposite, depending on which way the partisan valence runs, is not a principle of restraint at all. It is unstructured discretion wearing the costume of restraint—and the longer the Court declines to explain itself, the more threadbare that costume becomes..."
Another way of looking at this Court's application of the "Purcell principle" is through the lens created by Justice Jackson in her recent dissent: this is Calvinball, where the rules change to benefit the players as the ball is in play.
It is the "whatever seems expedient to keep the Republicans in power" principle, given that this political party is behind the furthering of the far rights counterrevolutionary goals. This Court has bent over backwards to facilitate their consolidation of power. If they have any other principles. I can't find them.
Me first?
They seem quite unconcerned with the fate of most of humanity.
Indeed: The Elite disdains the hoi polloi … but someone has to clear the dishes, no?
Even after they've forced most people into subservient positions, they don't stop. I can understand a gnawing dissatisfaction in unaccomplished frauds like Trump, but there are some skilled and astute minds behind this movement: Charles Koch, for example. Fear of death?
Classic fear of “The Other” more likely.
If I may make a couple suggestions in reading. One is Alice Miller's For Your Own Good: Hidden cruelty in childhood and the roots of violence. A searing study that I have found just revelatory. Remarkable too how closely Miller's "poisonous pedagogy" parallels modern child-tortures like James Dobson. A second suggestion would be my latest substack "The Supreme Court as Partisan Elitists" if I not be overly tooting my own horn.
this court has shown somewhat less regard for lower courts than previous scotuses. could these decisions all be reconciled by a view that lower court findings of unconstitutionality are always "preliminary", and only a "final" (ie., scotus) ruling overrides purcell?
No, because the court simultaneously insulates itself against the (very forceful) criticism that it is inventing facts and law rather than listening to reasoned argument precisely by adopting the legal fiction that its oracular pronouncements are but "preliminary" assessments of which party is "likely" to succeed that, trust us, can definitely be resolved differently once our oh-so-open minds listen to the actual arguments and bother to read the record.
Ah the Fifth Circuit. When I was in law school at Georgetown, the most reversed Circuit was the Ninth. Our Crim Law professor suggested that the opening lines of cert petitions from the Ninth could be "This petition is on appeal from the Ninth Circuit. Moreover, there are additional reasons the decision should be reversed."
But that was the "good" 9th Circuit.
Is there some way for us to move back from the insanity created out of whole cloth (that include Purcell, History and Tradition, Major Questions, etc.) to a place where the Supreme Court, instead, relies on facts (established through lower courts rather than ignored at the highest court) and law?
Facts? We don't need no stinking facts.
The alternatives to invoking history and tradition in interpreting the Constitution are also problematic. For example, how broadly should we interpret the "liberty" guaranteed by the Fifth and Fourteenth Amendments? In our deeply polarized society, if we were to rely only on current social norms, we'd be caught in never-ending battles between two sides that each see the other as an existential threat. We are anyway, but that would only make things worse.
In any case, both Republicans and Democrats have used history and tradition to support their claims. I don't think it's unreasonable if it's done impartially (there's the rub).
This whole use of/non use of Purcell smacks of a total political bias of Republicans as a wholle. The deny use of a tradition or a law when it goes against them but uses it when it suits their purposes. As in the Merrick Garland decision by the Senate 9 months before an election being to close to make a nomination to the acceptance of Amy Barrett's nomination, was it just a week before the inauguration of trump? They use the same playbook on the Supreme Court--accept if you like, find a reason to reject if not.
I make much of the 5th Circuit's batting average during the current term. (Maybe the fact the Court accepted 10 cases from the circuit is as telling as the outcomes.) Back in the day, my friends on the Right ranted about the 9th Circuit, ignoring completely the fact that circuit size explained at least in part why so many 9th Circuit cases ended up before the Court. That explainer doesn't really exist here.
The explainer here is that the 5th Circuit is being cynically employed as a generator of rulings to which the Supreme Court can say "gosh, that's too far" and thereby preserve some semblance of balance in the statistics of which side wins. On the one hand, Republicans win on cases saying black people don't have the right to elect legislators; on the other hand, Democrats win on cases saying black people should be formally re-enslaved. Both sides!
To the adage “Justice delayed is Justice denied” should be added, “ Injustice accelerated is Injustice reinforced.” I also propose applying the phrase “Pretzel Logic” to describe the Supreme Court’s behavior and decisions. This was an overarching theme for a 1970s song and album by Steely Dan representing convoluted, illogical reasoning. Or perhaps “cart before the horse,” focusing on a result before properly considering the cause. In Chief Justice Roberts’ favorite baseball analogy, it’s a strike, now let’s check the boundaries of the strike zone.
Or is the principle that there are no consistent principles? Do most Supremes say or think that the law is what they decide it is today – although there may be differences of opinion whether that is superseded by what the President says it is today, i.e., his agenda, which may explain the few decisions in which the Supreme Court has rejected his position? And farewell stare decisis, instead neglegere quae decreta sunt (ignore what has been decided) depending on the occasion. Does the choice lie between rule by lawyers and rule by an autocrat/ dictator? I don’t think or hope so, provided more of us exercise our right to vote to stop and reverse the ongoing deterioration of US democracy, motivated by our increasing awareness of the need, and how to do so. We are being informed by the valiant consistent efforts of Professor Vladeck to educate us in his sphere of knowledge and expertise, as well as those of others in their fields of knowledge including science, history, geopolitics, economics, philosophy and others. After all, is not the idea that we, the people are sovereign, that which is the “exceptional” characteristic of the US polity, even though it has taken us a long time, and the process is still incomplete, for the term “people” to include all humans ?
Put more pithily, John Roberts is the Texas Sharpshooter Fallacy as applied to the calling of balls and strikes. We know where the pitch was; now let's paint the strike zone to ensure that it is what we want it to be.
Thank you for making the point more pithily than my longwinded attempt. Any way we can. - to modify a British term - "take the pith" out of someone who deserves it is worth explo/ting.
I think the "Purcell principle" is really two different principles under one name. The liberals' Purcell principle is simply that courts shouldn't make any changes to an electoral map shortly before an election. The conservatives' Purcell principle is that courts shouldn't *impose* changes to an electoral map *against a state's will* shortly before an election. But the conservatives consider themselves free to *unimpose* an electoral map shortly before an election (by vacating a lower court decision that imposed that map against the state's will).
I think that's another way to say that courts aren't allowed to enjoin legislature-passed maps ever. If they do, that will be overturned. And thus the courts can't check any legislatures to protect the Constitution and people's rights.
I guess that's what they want.
With the recent ruling in the Alabama case, I now strongly support a restructuring in the Supreme Court. The six are political hacks, only sometimes restrained by the constitution they should be embarrassed, but they’re not.
SCROTUM SCOTUS 666
The analysis here is unpersuasive because it doesn’t actually grapple with the strongest argument on the other side: That compliance with Purcell is a necessary but not sufficient condition for a federal court to restrain application of a a state’s election laws. On that framing — i.e., treating Purcell as a *defense* to entry of an injunction that would otherwise be warranted to ensure compliance with federal law — the charge of inconsistency fades away. It’s plausible to treat Purcell as a reason to stay the 2022 injunctions (without engaging with the plaintiffs’ showing of likelihood of success on the merits), but not as a reason to maintain the 2026 injunctions once the Court concludes that the plaintiffs don’t have a likelihood of success on the the merits.
To be clear, one can question the Court’s application of Purcell in individual cases, or to question the necessity and wisdom of the doctrine more broadly. One could also try to advance a different version of the doctrine that would treat disruption/confusion caused by lifting an injunction as a reason to keep the injunction in place. I’m not commenting about those issues. But the inconsistency charge is unconvincing.
Has the Court ever made this argument or provided this as an explanation? If not, why should it even be credited? The onus should be on the Court to explain this, rather than for the masses to be left questioning why the Court ruled a certain way and for others to come to its defense for unexplained behavior.
Well this is exactly how Kavanaugh articulated the principle in the 2022 Alabama decision that Steve points to as an example of inconsistency: “federal courts ordinarily should not enjoin a state’s election laws in the period close to an election.” Nothing about that statement implies that Purcell requires courts to maintain an injunction in place after concluding that the plaintiff is unlikely to prevail on the merits.
As I'm sure you are aware, a Justice's concurrence with the grant of a stay is not an opinion of the Court, and so it only tells me how Justice Kavanaugh and Justice Alito see the matter.
The Purcell Pretext
Awesome analysis here, Professor. Without saying it in so many words, you have once again shown that the Court is, at present, an adjunct of the RNC. Despite the Chief's laments about "no Republican justices, no Democrat justices", the truth is plain to see. The majority ignores the lengthy, thoughtful work of the lower courts in finding Alabama's racial motivation and concludes "but the Republicans say it's just politics." Legitimacy is long lost.
The argument the principle has been applied consistently must rest on Kavanaugh's suggestion that courts should not intevene even when state legislatures "alter their own election rules in the late innings [as they will] bear the responsibility for any unintended consequences." That, if I understand the cases correctly, would square the circle. But that suggestion strikes me as remarkable and wrong. If a state legislature enacted a "late inning" change that was openly defiant of a recent Supreme Court decision, would the conservatives really stay their hand until after the election? Doing so would create a world in which the Court's orders could not be effectively enforced against any state that chose to take action during the Purcell window. (And I agree the principle, as articulated, cannot apply only to *lower* court intervention.)
Yeah, if you take that argument literally (and it is obviously not meant to be taken literally), states would simply have a perpetual get-out-of-the-Constitution-free button that could be pressed in every election cycle where the majority party enjoys legislative control (which, since we're talking gerrymandering here, may be a great many cycles indeed).
Can it really be the case that if a state, a week before the election, passes a new "only white people get to vote" rule, that federal courts are powerless to intervene until after the election? The idea is laughable on its face, and yet, if one takes Kavanaugh literally, that is the result that would flow. In reality if you confront conservatives about this they will hem and haw and say "well obviously we don't mean THAT," but of course there's no definition at all of what "that" is and in reality "that" just means changes which would benefit Democrats.
Re: "Can it really be the case that if a state, a week before the election, passes a new "only white people get to vote" rule, that federal courts are powerless to intervene until after the election?" Based on this latest ruling, I believe the answer is "Yes" as it pertains to lower federal courts. SCOTUS could still intervene.
But they won't.
While the Callais ruling isn’t that explicit—it doesn’t say only whites can vote—it does say, in effect, only white votes count. It’s as if all polling stations provided voters with two boxes: one red, one blue. And when voting closed, they drowned the blue box in the Gulf of America. The court has always seemed like a game of ‘tug-of-war’, with one or another justice occasionally switching sides to give the institution a veneer of fairness. Since Justice Scalia’s death, that veneer has been scraped off entirely. Justices Jackson, Kagan, and Sotomayor, valiant fighters that they are, have been unable to stop the plunge down Uncle Clarence’s rabbit-hole. The court hasn’t yet to hit rock bottom, but with each unprincipled ruling, their final destination, Wonderland, gets that much closer. At this point, the tortured arguments presented by the six Republican justices concur with Tweedledum’s pithy explainer: “Contrariwise, if it was so, it might be; and if it were so, it would; but as it isn’t, it ain’t. That’s logic.”
I confess I have to reread your paragraphs even though your prose is elegant and efficient. Thanks for keeping us exceptionally well-informed.