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There’s an old maxim in the legal world: “He who comes into equity must come with clean hands.” In English, that means if you are asking a court to order your opponent to do (or stop doing) something, you must have first behaved honorably yourself. If you engaged in some misconduct concerning the matter at hand, you are not allowed to run to a judge and ask her to clean up your mess.
To put it a bit more pungently, courts — and especially high courts — are where bullshit goes to die.
Over the last few weeks, Americans have been deluged with news stories about two separate, complicated and fast-moving legal cases involving the upcoming midterm elections. Both cases featured efforts by Republican officials to make it harder for people to vote or be represented. And both illustrate how courts and judges choose to deal with litigants who come to them pleading for help after behaving badly — litigants with unclean hands. One court, the Missouri Supreme Court, dealt with the situation assertively to protect its own citizens’ rights; two justices of the U.S. Supreme Court, on the other hand, provided a master class in what not to do.
The first case, from Missouri, is a procedural car wreck, encompassing interlocking lawsuits, multiple plaintiffs and defendants, and confusing fact patterns. The details are laid out clearly and as concisely as possible by my colleague Alicia Bannon in the Brennan Center’s State Court Report. The (relatively) quick version is that, in 2025, Missouri Republicans drew a new congressional map that erased one of the two traditionally Democratic districts, creating a likely 7–1 Republican advantage.
Opponents of the new map gathered more than 300,000 signatures, enough to put it on the November ballot and giving voters the opportunity to nullify it. Under the state constitution, the successful petition drive should have immediately suspended the implementation of the new map until the voters had weighed in.
So far, so good. Except that the Missouri secretary of state, Denny Hoskins, refused to certify the petition. He dragged the process out until the almost-literal last minute. At 4 p.m. on August 4, one hour before the certification deadline, he announced that the petition was invalid — not because there was anything wrong with the signatures, but because, he claimed, the new district map could not legally be put to a referendum. Anyway, Hoskins argued, it was too late: August 4 was also, by chance, Missouri’s primary day, so the state’s voters had chosen their candidates for the general election in November using their new, 7–1 map.
Hoskins was sued that same day. In his defense, he argued that it was impossible to go back to using the old map now, after the people had already voted in the primary using the new map. Switching maps at this point would cause confusion and extra expense, he pleaded. The matter went up to the Missouri Supreme Court, which said, in effect, BS.
The court pointed out that Hoskins’s arguments were “misplaced given the secretary’s delay created the confusion, expense, and practical difficulties of which he complains.” “The secretary delayed certification until the last possible date,” the court noted, calling his pleas “wholly unpersuasive.” In a final blow, the court said, the new Republican map “is not the law and has never been the law.” In short, Hoskins and Republican lawmakers had forced Missourians to vote under an illegal map and now were demanding that there was no other choice but to use the same map again.
Reading the court’s 14-page smackdown of the secretary’s claims gave me a feeling I have lately been unaccustomed to — a deep, smiling satisfaction at seeing a man with very dirty hands get his comeuppance in a few carefully wrought and devastating sentences. That, in a word, is justice. I might go so far as to say sitting a few minutes with the ruling is a particularly enjoyable way to pass a slow late-summer evening.
I will also point out that the Missouri Supreme Court is, like the state’s congressional delegation, dominated by Republican appointees: Five of the justices were appointed by Republican governors, versus two by Democrats. And yet, unlike on some courts we might mention, that fact was not relevant to the outcome. The Missouri justices did exactly what they are trained to do. Hoskins tried to put one over on them, like the child who murders his parents and then pleads for the court’s mercy on account of being an orphan. It was an insult to their intelligence, to the state constitution, and to the people of Missouri, and the justices were rightly having none of it.
Let’s contrast that with the other headline-grabbing litigation of the last few weeks, which was, of course, the mail-voting brouhaha that ended last Monday at the Supreme Court.
In this case, President Trump was at the center of an effort to disenfranchise voters — this time, by issuing an executive order that purported to target “voter fraud” by, among other things, instructing the U.S. Postal Service to withhold mail ballots from eligible American voters. Tens of millions of Americans (including Trump himself) vote by mail, and it was clear that trying to implement such a rule so close to an election would cause an unprecedented level of electoral chaos.
The executive order prompted five lawsuits, including one brought by voting rights and civic organizations represented by the Brennan Center and co-counsel. At issue were both the merits (whether the USPS can legally promulgate such a rule for elections) and the so-called equities (the likelihood that millions of Americans would be disenfranchised by such a rule, which had no clear impact on voter fraud). After several lower courts blocked the Postal Service from implementing any such rule, the matter quickly made its way to the Supreme Court.
The Court actually did the right thing in the end, concluding in a few cursory sentences that the government was likely to lose both on the merits and on the equities of the case. (One might imagine that a rule like the Postal Service’s would be subject to the Court’s major-questions doctrine, which holds that whenever an agency’s action would have vast political or economic significance, Congress has to be clear in delegating the authority to take such action. The justices had no qualms about applying this doctrine to the Biden administration. Maybe they will eventually apply it to the USPS rule as well! But I digress.)
The Court’s vote count in the mail ballot case was not made public, as is the norm with decisions on the shadow docket. We know, however, that at least two justices disagreed on both counts. The 8-page dissent, written by Justice Samuel Alito and joined by Justice Clarence Thomas, was filled with expressions of concern for those who might be harmed by the decision.
To be clear, the harm that concerned Alito was not to the millions of voters who would be unable to cast a ballot under the new rule. Rather, he wept over the Trump administration’s inability to implement its preferred policy. “Because reversal of the District Court’s [injunction] would come too late for the 2026 midterms, the District Court’s errors deal a serious setback to the Executive’s goals while this litigation unfolds,” he wrote.
Alito cataloged all the ways in which the states had used litigation to slow down the Trump administration from implementing the rule, thus pushing the process deep into summer and triggering the concerns about chaos and unpreparedness. “The plaintiff States cannot claim the timing of the rule tilts the equities in their favor when they, and courts hearing their claims, are responsible for so much of the delay,” Alito concluded. In other words, he was accusing the states of having unclean hands.
Without getting too deep into the weeds, I’ll offer a few words that have been used by legal experts to describe Alito’s dissent: “disingenuous”; “ludicrous”; “utter bollocks.”
He failed to mention that when the states had sued to block the USPS rule previously, the Trump administration had protested (and the Court had agreed!) that they did not have standing because there was no actual rule on the books yet. He also failed to mention that the lower courts never stopped the government from working on the rule, only from implementing it.
As so often seems to be the case, the justice who votes with Trump more than any other had it exactly backward. There were indeed unclean hands all over the mail ballot case, but they belonged to the federal government, not the states. (As Steve Vladeck pointed out, this is not the first time Alito has made an unfair accusation on these grounds.)
