The Eighth Circuit’s attempt to put Missouri’s 2025 congressional map back into effect will fail. It’s also yet another example of the mischief the Supreme Court’s shadow docket behavior can beget.
I understand such references. My point was that it's inappropriate to impugn the integrity of the entire circuit's judges. This is the misconduct of two to three judges, not the circuit.
Just my two cents here: Is it actually helpful to single out one or multiple individual judges’ conduct in CA5 to reach the conclusion that the court would not be able to make these deeply unsettling decisions were it not for the sum of its parts? I think, Jack, that would be a distinction without a difference.
The reputation of the court does not stand or fall based on individual conduct, but rather on repeated decisions by at least two judges reaching the same result or employing the same methodology. That is a product of the institutional commonality shared by its members.
For conservative judges who have spent half a century complaining about judicial activism, what makes their actions meaningfully different from the liberal judges they criticize?
Originalism does not answer that question by itself, and it does not end the inquiry. If the methodology permits judges to fill textual gaps with judge-made rules and then characterize those rules as compelled applications of the text, the label “originalist” does not establish that the methodology actually constrained the judicial choice.
Where a judge or court consistently resolves that tension in favor of a preferred outcome and dresses the result in originalist language, that is not merely a rhetorical dispute.
It is a falsifiable methodological claim. CA5’s recent record on nationwide injunctions, the mifepristone litigation, and the selection of historical analogues in Second Amendment cases after Bruen has drawn precisely that criticism from originalist scholars themselves, not merely from political opponents.
The recent Rule 24 decision in United States v. Texas is a particularly clean example. The majority relies on Pin v. Texaco, 793 F.2d 1448 (5th Cir. 1986), to establish that a court must screen a proposed intervenor’s pleading for legal sufficiency before reaching Rule 24(a) or (b)’s intervention factors.
But Rule 24’s text lists timeliness, interest, impairment, and adequacy of representation. It does not expressly require a threshold futility inquiry. That requirement is a judicially developed gloss, borrowing from the futility doctrine courts use when evaluating proposed Rule 15 amendments.
The majority then takes the doctrine one step further. Pin involved a plaintiff-side intervenor asserting additional claims, and the majority expressly acknowledges that “this court has not directly addressed” whether the same framework applies to defense-side intervenors. It nevertheless extends the rule, relying on Rule 24(c)’s reference to a “claim or defense,” treatises, and the practice of other circuits.
That is common-law-style doctrinal development. There is nothing inherently illegitimate about courts developing doctrine where text and precedent leave questions unresolved. But it becomes relevant to the methodological claim when a court presents the resulting rule as though it were simply compelled by the text.
And Judge Ramirez’s dissent lands a clean second punch: even accepting the majority’s judicially created threshold framework, the majority then applies that framework incorrectly to the proposed defenses.
The problem therefore exists at two levels: the court first extends a judicially developed doctrine beyond the context in which it arose, then misapplies the doctrine it has chosen to extend.
In other words, the court develops a doctrine to fill a textual gap, extends it to a category the court had never previously addressed, and then applies the wrong procedural analogue within the framework it created.
That is exactly the kind of judicial discretion that an originalist or textualist methodology is supposed to constrain. The question is not whether judges are allowed to develop common-law doctrine. Of course they are.
The question is whether calling the resulting doctrine “textual” or “originalist” actually tells us anything about how constrained the judicial choice was.
Here, the chain of reasoning is visible: Rule 24, Pin, an unresolved defense-side question, sister-circuit practice, a new Fifth Circuit rule, a Rule 12(b)(6) framework that the dissent argues does not properly test the defenses at issue.
At some point, “we are just following the text” stops being an explanation and becomes the conclusion that needs to be demonstrated. “Textual cover” is not text. If the drafters of the rule intended for that to be the case, they would have written it in. That’s the kind of hypocrisy I am pointing at.
JG, for some people everything is about partisan politics. For those people, it's enough to use labels like Democrat or Republican, conservative or liberal. For them, it's enough to attach a label to a group of people, e.g., a court. That's an archaic old world way of thinking.
The First Amendment stands for the proposition that we aren't judged for our mere opinions or our associations, religious or political. Copious law stands for the proposition that we must be judged by our conduct, not by our mere religious or political opinions. I'm saying the same thing. We must judge judges by their conduct, not their religious or political opinions.
The people who wrote and ratified our Constitution weren't concerned with simple labels or mere political or religious opinions. They cared far more about personal accountability for personal conduct. That's why the people (in Article II and VI) commanded that each individual representative take an oath (swear or affirm) to support our Constitution. That's also why they used written constitutions to divide and diversify powers.
I'm also opposing the desire for anonymity of judges who are guilty of misconduct. It is a fact of human nature that people doing bad things often prefer anonymity. Judges doing bad things often hide behind the anonymity of a "per curiam" opinion or no opinion at all. They also hide behind the anonymity of vague allusions to "a court." Judges doing bad things deeply resent being called out as individuals. That's why far too many judges far too often retaliate against lawyers and litigants for calling them out personally. That’s why many lawyers and litigants fear to call out judges for their individual conduct. But it's our right (and our duty as citizens) to call out our representatives when they violate our Constitution.
You likely know this and were just using shorthand, but flagging that the First Circuit’s decision in DVD affirmed the final grant of vacatur, rather than the previously stayed preliminary injunction.
The People included the answer to that question (famously and prominently) in Article I. The People assigned to Congress the power and the duty "To make all Laws which" turn out to "be necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Our experiences over the past few years prove that Congress can and must enact legislation establishing due process of law in SCOTUS shadow docket/emergency docket cases.
It’s the very nature of shadows, ephemeral, fleeting, undefined at the margins, that one isn’t quite sure what they are or what they mean. At this point, the SC seems to like its rulings to be like that, allowing them to shift at will, indignantly reprimanding those who cannot divine the meaning of those shadows, or at least the SC’s current meaning of those shadows.
Quesrion. Do federal appeals courts have jurisdiction to conduct trials ? A: No. OK then. Q. Do federal appeals courts have jurisdiction, eg, power and authority, to determine in advance the outcome of a trial court proceeding that involves a trial...in effect, eg, an evidentiary hearing the outcome of which must depend on the hearing and consideration of such evidence ?? Appeals courts can direct dismissal. They can affirm summary judgments or not. Can they also obliged a trial court to enter findings and grant affirmative relied for which the hearing of evidence is a condition precedent ??
I guess y'all know what I think. I wonder if the Chicago 7 or Bobby Seal or Berrigan Brothers cases have anything to say about this ?
I suppose the appeals court could have issued an advisory opinion to the effect that they will affirm an injunction in this case should the trial judge decide to issue one. That's guidance for you.
This one won't but another trial judge just might choose to ignore such an order. Your move. Take away his parking space ?
Reading the tea leaves this tells me Rpublicans are in big trouble in Missouri. They have to know it in order to pull stunts like this that threaten to disrupt the election and hang the results.
No matter what Eighth Circuit judges purported to order, the U.S. district court judge has no power to violate the U.S. Constitution or help Missouri officials violate the Fourteenth Amendment. That's the primary point of the Supremacy Clause and the Oath Clause in Article VI and the oath in 5 U.S.C. Section 3331.
Amendment XIV emphasized that "All persons born or naturalized in the United States . . . are citizens of the United States" and "No State" has any power to purport to either "make or enforce any law" that would "abridge the privileges or immunities of citizens of the United States." Such privileges and immunities clearly include the right not to be "deprive[d]" of "life" or any "liberty, or [any] property" before being afforded all "process of law" that is "due" and the right to "the equal protection of the laws."
Here, federal judges are trying to con us into believing that Missouri had the power to both “make” and “enforce” law that clearly and irrefutably would "abridge the privileges or immunities of citizens of the United States," and "deprive" Missouri voters of the "liberty” to vote in a referendum “without due process of law" and “deny” Missouri voters "the equal protection of the laws."
Here, the dispositive facts include that the 2025 map is not (and cannot be) law because the people of Missouri in the Missouri Constitution commanded that it must be approved by voting in a referendum before it can become law. Here, federal judges are acting like con men merely trying to con us into believing that something somehow gave them the power to rob or defraud Missouri voters (U.S. citizens) of our right to vote in the referendum that the Missouri Supreme Court (directly) and the U.S. Supreme Court (indirectly) already concluded was required.
Steve, here in Missouri, we seem to have taken a wrong turn down the rabbit hole. Now, as a Mizzou Law grad having spent 3 years yelling "Mizzour-uh" at Faurot Field, I'm not offended when people express a little bit of surprise when I pronounce our state's name - but until now, I've always sort of thought that they would not be surprised when I told them what the legal process in our state is. With apologies to Lewis Carroll, here's my take about the 8th Circuit's [ruling? can I even call it that?] tonight:
“That preliminary injunction is stayed,” said Alice. “Then we’ll call it a permanent injunction!” cried the Mad Hatter.
Meanwhile, the Cheshire Court has vanished, leaving only an unexplained order.
Curiouser and curiouser—and somehow we’re supposed to vote?
“Curiouser and curiouser—and somehow we’re supposed to vote?” Again and again, that does seem to be the overarching intent across the nation—sow chaos and confusion, delay submitting ballots, threaten safety at polling locations—dissuade voters from voting.
Political historian Joanne Freeman has mentioned in her talks on YouTube about John Quincy Adams’ (in Congress, after presidency) discovery that what really riles people up is to tell them that their rights are being violated. He was anti-slavery and was confounded by the lack of interest from the electorate (who were generally against slavery) in doing anything about it. When congress blocked the right to petition (in order to prevent further discourse on the subject) he pounced on this as an opportunity. “Your freedom of speech is being violated.” That got people fired up. Americans get pissed when the government moves to violate our rights. Not so much when it’s someone else’s. My summary may not be entirely accurate, but it’s true to the point Prof Freeman makes. If people realize that their rights are being intentionally undermined, they will stand up.
Professor’s Vladeck’s exposes of the absurdity of the procedures and inexplicable and unexplained rulings of the Roberts Court and their impact on lower courts have revived my memories of encounters with the absurdity of life expressed by great writers and thinkers. For example, Franz Kafka’s absurdity presents a a worldview where human life is trapped in meaningless, opaque, and illogical systems that defy reason and control. Sounds like the Shadow Docket, nicht wahr? In contrast we may feel that life is absurd and nothing we do matters. Then Albert Camus is our source of wisdom. I recall my teenage and college days, when occasionally I had this disturbing feeling, which would vanish if I saw a young woman whom I found attractive, and hoped the attraction would be mutual. Camus advises that rather than deny life’s absurdity we can find authentic happiness by perpetually scorning our absurd fate, or perhaps for Anglophiles by thinking about the absurdity as a source of inspiration for new Monty Python sketches - ”Noone expects the Supreme Court’s decisions. Our chief weapons are the Shadow Docket, loyalty to a convicted felon, our allies in groups wearing red baseball caps with silly slogans…..”
The Chaos in Missouri (will it go down in history as noteworthy as the Missouri Compromise?) which Professor Vladeck explains can perhaps be presented to Chief (In)Justice Roberts with a metaphor from baseball or another sport he should appreciate. Is it reasonable to change the change the definition or boundaries of a strike zone after the start of a game, or for soccer fans to change the timing and positioning conditions of the offside rule after play has started?
Camus, Sartre, Nietzsche -- none of them can hold a candle to a dog with a crooked jaw and a lolling tongue who brought unconditional love to the man who gave him a home:
Oy vey. But your analysis gives us hope. Thank you, Steve.
Ir reads as a willful defiance of the Supreme Court by the 8th Cicuit.
Not by the Eighth Circuit, but by particular judges. As judges often emphasize, offices don't commit crimes, people do.
In this context, the reference to the circuit is commonly understood as a reference to the three judges on the panel who decided the appeal.
I understand such references. My point was that it's inappropriate to impugn the integrity of the entire circuit's judges. This is the misconduct of two to three judges, not the circuit.
I think you are misreading the comment. You do not have to agree.
Just my two cents here: Is it actually helpful to single out one or multiple individual judges’ conduct in CA5 to reach the conclusion that the court would not be able to make these deeply unsettling decisions were it not for the sum of its parts? I think, Jack, that would be a distinction without a difference.
The reputation of the court does not stand or fall based on individual conduct, but rather on repeated decisions by at least two judges reaching the same result or employing the same methodology. That is a product of the institutional commonality shared by its members.
For conservative judges who have spent half a century complaining about judicial activism, what makes their actions meaningfully different from the liberal judges they criticize?
Originalism does not answer that question by itself, and it does not end the inquiry. If the methodology permits judges to fill textual gaps with judge-made rules and then characterize those rules as compelled applications of the text, the label “originalist” does not establish that the methodology actually constrained the judicial choice.
Where a judge or court consistently resolves that tension in favor of a preferred outcome and dresses the result in originalist language, that is not merely a rhetorical dispute.
It is a falsifiable methodological claim. CA5’s recent record on nationwide injunctions, the mifepristone litigation, and the selection of historical analogues in Second Amendment cases after Bruen has drawn precisely that criticism from originalist scholars themselves, not merely from political opponents.
The recent Rule 24 decision in United States v. Texas is a particularly clean example. The majority relies on Pin v. Texaco, 793 F.2d 1448 (5th Cir. 1986), to establish that a court must screen a proposed intervenor’s pleading for legal sufficiency before reaching Rule 24(a) or (b)’s intervention factors.
But Rule 24’s text lists timeliness, interest, impairment, and adequacy of representation. It does not expressly require a threshold futility inquiry. That requirement is a judicially developed gloss, borrowing from the futility doctrine courts use when evaluating proposed Rule 15 amendments.
The majority then takes the doctrine one step further. Pin involved a plaintiff-side intervenor asserting additional claims, and the majority expressly acknowledges that “this court has not directly addressed” whether the same framework applies to defense-side intervenors. It nevertheless extends the rule, relying on Rule 24(c)’s reference to a “claim or defense,” treatises, and the practice of other circuits.
That is common-law-style doctrinal development. There is nothing inherently illegitimate about courts developing doctrine where text and precedent leave questions unresolved. But it becomes relevant to the methodological claim when a court presents the resulting rule as though it were simply compelled by the text.
And Judge Ramirez’s dissent lands a clean second punch: even accepting the majority’s judicially created threshold framework, the majority then applies that framework incorrectly to the proposed defenses.
The problem therefore exists at two levels: the court first extends a judicially developed doctrine beyond the context in which it arose, then misapplies the doctrine it has chosen to extend.
In other words, the court develops a doctrine to fill a textual gap, extends it to a category the court had never previously addressed, and then applies the wrong procedural analogue within the framework it created.
That is exactly the kind of judicial discretion that an originalist or textualist methodology is supposed to constrain. The question is not whether judges are allowed to develop common-law doctrine. Of course they are.
The question is whether calling the resulting doctrine “textual” or “originalist” actually tells us anything about how constrained the judicial choice was.
Here, the chain of reasoning is visible: Rule 24, Pin, an unresolved defense-side question, sister-circuit practice, a new Fifth Circuit rule, a Rule 12(b)(6) framework that the dissent argues does not properly test the defenses at issue.
At some point, “we are just following the text” stops being an explanation and becomes the conclusion that needs to be demonstrated. “Textual cover” is not text. If the drafters of the rule intended for that to be the case, they would have written it in. That’s the kind of hypocrisy I am pointing at.
Correction: The graft is from Rule 15 - not 12(b)(6).
JG, for some people everything is about partisan politics. For those people, it's enough to use labels like Democrat or Republican, conservative or liberal. For them, it's enough to attach a label to a group of people, e.g., a court. That's an archaic old world way of thinking.
The First Amendment stands for the proposition that we aren't judged for our mere opinions or our associations, religious or political. Copious law stands for the proposition that we must be judged by our conduct, not by our mere religious or political opinions. I'm saying the same thing. We must judge judges by their conduct, not their religious or political opinions.
The people who wrote and ratified our Constitution weren't concerned with simple labels or mere political or religious opinions. They cared far more about personal accountability for personal conduct. That's why the people (in Article II and VI) commanded that each individual representative take an oath (swear or affirm) to support our Constitution. That's also why they used written constitutions to divide and diversify powers.
I'm also opposing the desire for anonymity of judges who are guilty of misconduct. It is a fact of human nature that people doing bad things often prefer anonymity. Judges doing bad things often hide behind the anonymity of a "per curiam" opinion or no opinion at all. They also hide behind the anonymity of vague allusions to "a court." Judges doing bad things deeply resent being called out as individuals. That's why far too many judges far too often retaliate against lawyers and litigants for calling them out personally. That’s why many lawyers and litigants fear to call out judges for their individual conduct. But it's our right (and our duty as citizens) to call out our representatives when they violate our Constitution.
Thank you for getting this out so quickly and assuaging my mind that SCOTUS likely won't go along for this. Absolutely INSANE.
Bonkers!
Odd that such chatterboxes as the six arch-conservatives, refrain from *any* sort of explanation when donning their shadow court robes.
You likely know this and were just using shorthand, but flagging that the First Circuit’s decision in DVD affirmed the final grant of vacatur, rather than the previously stayed preliminary injunction.
Could congress make a law outlawing the shadow docket?
Yes, and it should. However, its not a panacea; courts know how to maliciously comply with laws requiring facts and reasons for their rulings.
Another thing it could do is provide for expedited legislative reversal of any shadow docket ruling.
Except that when "expedited" is adjacent to "legislative", they annihilate each other like matter and anti-matter.
The People included the answer to that question (famously and prominently) in Article I. The People assigned to Congress the power and the duty "To make all Laws which" turn out to "be necessary and proper for carrying into Execution" absolutely "all [the] Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Our experiences over the past few years prove that Congress can and must enact legislation establishing due process of law in SCOTUS shadow docket/emergency docket cases.
It’s the very nature of shadows, ephemeral, fleeting, undefined at the margins, that one isn’t quite sure what they are or what they mean. At this point, the SC seems to like its rulings to be like that, allowing them to shift at will, indignantly reprimanding those who cannot divine the meaning of those shadows, or at least the SC’s current meaning of those shadows.
It’s the only way for them to claim fairness when they rule against the next democrat for doing the same thing
How about a law voiding all cases where Justices had a conflict of interest - retroactively?
Only The Shadow knows.
Quesrion. Do federal appeals courts have jurisdiction to conduct trials ? A: No. OK then. Q. Do federal appeals courts have jurisdiction, eg, power and authority, to determine in advance the outcome of a trial court proceeding that involves a trial...in effect, eg, an evidentiary hearing the outcome of which must depend on the hearing and consideration of such evidence ?? Appeals courts can direct dismissal. They can affirm summary judgments or not. Can they also obliged a trial court to enter findings and grant affirmative relied for which the hearing of evidence is a condition precedent ??
I guess y'all know what I think. I wonder if the Chicago 7 or Bobby Seal or Berrigan Brothers cases have anything to say about this ?
I suppose the appeals court could have issued an advisory opinion to the effect that they will affirm an injunction in this case should the trial judge decide to issue one. That's guidance for you.
This one won't but another trial judge just might choose to ignore such an order. Your move. Take away his parking space ?
Reading the tea leaves this tells me Rpublicans are in big trouble in Missouri. They have to know it in order to pull stunts like this that threaten to disrupt the election and hang the results.
No matter what Eighth Circuit judges purported to order, the U.S. district court judge has no power to violate the U.S. Constitution or help Missouri officials violate the Fourteenth Amendment. That's the primary point of the Supremacy Clause and the Oath Clause in Article VI and the oath in 5 U.S.C. Section 3331.
Amendment XIV emphasized that "All persons born or naturalized in the United States . . . are citizens of the United States" and "No State" has any power to purport to either "make or enforce any law" that would "abridge the privileges or immunities of citizens of the United States." Such privileges and immunities clearly include the right not to be "deprive[d]" of "life" or any "liberty, or [any] property" before being afforded all "process of law" that is "due" and the right to "the equal protection of the laws."
Here, federal judges are trying to con us into believing that Missouri had the power to both “make” and “enforce” law that clearly and irrefutably would "abridge the privileges or immunities of citizens of the United States," and "deprive" Missouri voters of the "liberty” to vote in a referendum “without due process of law" and “deny” Missouri voters "the equal protection of the laws."
Here, the dispositive facts include that the 2025 map is not (and cannot be) law because the people of Missouri in the Missouri Constitution commanded that it must be approved by voting in a referendum before it can become law. Here, federal judges are acting like con men merely trying to con us into believing that something somehow gave them the power to rob or defraud Missouri voters (U.S. citizens) of our right to vote in the referendum that the Missouri Supreme Court (directly) and the U.S. Supreme Court (indirectly) already concluded was required.
Were the Eighth Circuit justices auditioning for the Supreme Court?
Yes, and sadly, they see their biggest competition down in the Fifth Circuit and try to exceed them.
But why would the Eighth Circuit do this? Just to poke USSC in the eye??
Wow! Thanks Steve, very entertaining!
excellent update, Steve.
Steve, here in Missouri, we seem to have taken a wrong turn down the rabbit hole. Now, as a Mizzou Law grad having spent 3 years yelling "Mizzour-uh" at Faurot Field, I'm not offended when people express a little bit of surprise when I pronounce our state's name - but until now, I've always sort of thought that they would not be surprised when I told them what the legal process in our state is. With apologies to Lewis Carroll, here's my take about the 8th Circuit's [ruling? can I even call it that?] tonight:
“That preliminary injunction is stayed,” said Alice. “Then we’ll call it a permanent injunction!” cried the Mad Hatter.
Meanwhile, the Cheshire Court has vanished, leaving only an unexplained order.
Curiouser and curiouser—and somehow we’re supposed to vote?
“Curiouser and curiouser—and somehow we’re supposed to vote?” Again and again, that does seem to be the overarching intent across the nation—sow chaos and confusion, delay submitting ballots, threaten safety at polling locations—dissuade voters from voting.
Political historian Joanne Freeman has mentioned in her talks on YouTube about John Quincy Adams’ (in Congress, after presidency) discovery that what really riles people up is to tell them that their rights are being violated. He was anti-slavery and was confounded by the lack of interest from the electorate (who were generally against slavery) in doing anything about it. When congress blocked the right to petition (in order to prevent further discourse on the subject) he pounced on this as an opportunity. “Your freedom of speech is being violated.” That got people fired up. Americans get pissed when the government moves to violate our rights. Not so much when it’s someone else’s. My summary may not be entirely accurate, but it’s true to the point Prof Freeman makes. If people realize that their rights are being intentionally undermined, they will stand up.
Professor’s Vladeck’s exposes of the absurdity of the procedures and inexplicable and unexplained rulings of the Roberts Court and their impact on lower courts have revived my memories of encounters with the absurdity of life expressed by great writers and thinkers. For example, Franz Kafka’s absurdity presents a a worldview where human life is trapped in meaningless, opaque, and illogical systems that defy reason and control. Sounds like the Shadow Docket, nicht wahr? In contrast we may feel that life is absurd and nothing we do matters. Then Albert Camus is our source of wisdom. I recall my teenage and college days, when occasionally I had this disturbing feeling, which would vanish if I saw a young woman whom I found attractive, and hoped the attraction would be mutual. Camus advises that rather than deny life’s absurdity we can find authentic happiness by perpetually scorning our absurd fate, or perhaps for Anglophiles by thinking about the absurdity as a source of inspiration for new Monty Python sketches - ”Noone expects the Supreme Court’s decisions. Our chief weapons are the Shadow Docket, loyalty to a convicted felon, our allies in groups wearing red baseball caps with silly slogans…..”
The Chaos in Missouri (will it go down in history as noteworthy as the Missouri Compromise?) which Professor Vladeck explains can perhaps be presented to Chief (In)Justice Roberts with a metaphor from baseball or another sport he should appreciate. Is it reasonable to change the change the definition or boundaries of a strike zone after the start of a game, or for soccer fans to change the timing and positioning conditions of the offside rule after play has started?
Camus, Sartre, Nietzsche -- none of them can hold a candle to a dog with a crooked jaw and a lolling tongue who brought unconditional love to the man who gave him a home:
https://www.plough.com/articles/how-a-rescue-dog-saved-me
A truly brilliant post