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The First Amendment Lives for Another News Cycle—Maybe

In this week’s Elie v. U.S., our justice correspondent parses Trump’s attacks on CNN, MS NOW, and Politico. Plus: it’s time to impeach the judges!

Flyers in support of banned news outlets hang in the White House briefing room.

If it were up to me, three Republican judges on the US Court of Appeals for the Eighth Circuit would be impeached for their ruling in the Missouri redistricting case. In that ruling, the court reinstated a congressional map that had been racially gerrymandered to deny political power to Black voters. The map had already been rejected by the Missouri state Supreme Court and the US Supreme Court—but the judges decided to pull a Trump and ignore both.

Now, regular readers will know that I’m generally not a guy who calls for the impeachment of judges, and I’ve never been a guy to call for impeachment simply because of “bad rulings.” Federal judges are supposed to serve for life. But the bad behavior of this Eighth Circuit panel is so lawless and nakedly partisan that it violates any reasonable conduct we should expect from the federal judiciary.

For those who haven’t followed the saga: The state of Missouri engaged in Trump-backed, mid-cycle redistricting to try to secure an additional seat for Republicans in Congress. The state’s plan was to divide Kansas City, Missouri, denying Black voters living there a fair opportunity to elect a candidate of their choice. Citizens opposed to the new map organized a voter referendum on the issue for this November, as allowed under Missouri law. Republicans pulled a series of shenanigans to get the new maps installed as the default until the voter referendum (which is the opposite of what the law requires), and the whole thing got kicked into the courts.

The Missouri state Supreme Court ruled, reasonably, that the old maps needed to be in place until the referendum. So Republicans decided to take the case to a federal court and then found a district court judge appointed by Trump who insisted that the new maps be used. His decision was appealed to the Supreme Court, which issued a shadow docket ruling putting it on hold, effectively pausing the case until after the election. This meant that Missouri would be forced to use its old maps for the midterms.

But then the three judges on the Eighth Circuit decided that the Supreme Court didn’t matter. Judges James Loken (a George H.W. Bush appointee), David Stras (a Trump appointee), and Justin Smith (a Trump appointee who also used to be one of Trump’s personal lawyers) issued a wild opinion on Monday, reinstating the new, racist Missouri maps. Judge Loken somehow interpreted the Supreme Court’s hold as an invitation for the Eighth Circuit to “get to work,” and affirmed the district court ruling requiring the new maps.

The fact that the Supreme Court put that exact district court ruling on hold meant nothing to these three judges. The fact that their new ruling will cause additional confusion mere weeks before the election meant nothing. The fact that their new ruling will almost surely get spiked again by the Supreme Court (it may well have been spiked again by the time you read this), meant nothing. All that mattered to these three judges was making one more attempt at using racist maps to help Republicans win one more seat in the upcoming midterms.

This is beyond “bad faith,” and I say that as a person who covers the bad faith of Republican judges for a living. These are........

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