Here’s a familiar story. On Tuesday night, the Supreme Court handed down a decision that will almost certainly give the Republican Party an additional seat in the US House of Representatives. Not all of the justices disclosed how they voted, but the decision appears to have come down 6-3 along partisan lines — that is, the six Republican justices voted to give the GOP another House seat, while the Court’s three Democrats dissented.

In fairness, the GOP justices’ most recent decision in Allen v. Milligan fits a broader pattern in this Supreme Court’s gerrymandering cases that can be explained without accusing those Republican justices of deciding election cases solely on the basis of partisanship. The Court has spent the past seven years dismantling all federal safeguards against gerrymandering.

Allen fits this pattern. On its face, the Republican justices’ brief opinion in the case is just the next iterative step toward a legal regime where states can draw maps however they want, regardless of whether those maps are drawn to favor one political party, or whether they are drawn to lock nonwhite voters out of power.

But the Republican justices’ new decision stands out because, while the Allen opinion is consistent with the Court’s broader trend toward redistricting anarchy, its actual legal arguments are inconsistent with things the same justices said as recently as one month ago. The decision is also inconsistent with previous orders that the Court’s Republican majority handed down in the Allen case itself.

If you want the full rundown of all of these inconsistencies, go read Justice Sonia Sotomayor’s dissent in this most recent decision. There are so many of them that it is hard to escape the conclusion that the Court’s Republicans aren’t being honest about their true motivations. The simplest explanation for Tuesday night’s decision is that the Court’s Republican majority is bending the rules because they want the Republican Party to hold a majority in the House.

The U.S. Supreme Court’s Republican-appointed majority erased all doubts about the sweeping nature of its recent voting rights jurisprudence Tuesday night with a shadow docket ruling that effectively reverses the Court’s own decision in the same matter just three years ago.

The unsigned emergency order in Allen v. Milligan goes beyond the court’s recentLouisiana v. Callais decision, which merely nullified the Voting Rights Act’s (VRA) prohibition on unintentional racial discrimination, to also make it all but impossible for judges to strike down a map as intentionally discriminatory.

It does so by essentially flipping its own 2023 ruling in the same case.

In dissent, Justice Sonia Sotomayor excoriated that decision to go down the “path” that “disregards both democratic values and the rule of law, leading to “a chaotic election, held under a never-before-used congressional map that intentionally discriminates against Black Alabamians, that Alabama adopted in unashamed defiance of a prior court order directly affirmed by this Court, and that will require officials to change the voter registrations of hundreds of thousands of voters in just days at best, a task that Alabama previously represented would take months.”

Sotomayor noted that Tuesday’s decision was the third time Alabama’s congressional map had found its way before the high bench, lamenting that “[e]ach turn reveals just how unconscionable the Court’s action is today.”

The Heritage Foundation’s “Mandate for Leadership: The Conservative Promise” — popularly known as Project 2025 — was much more than a wish list of conservative policy preferences. It was much more, even, than a blueprint for a second Trump administration.

Project 2025 was, above all, a statement of values and a theory of governance. Its authors did not simply want to move national policymaking to the right. They wanted to use the authority of the executive branch to impose a new regime on the United States.

“We are in the process of the second American Revolution,” declared Kevin Roberts, president of the Heritage Foundation, the summer before the 2024 election. This revolution, he added, “will remain bloodless if the left allows it.” Russell Vought, who leads the Office of Management and Budget and was, like Roberts, a key architect of Project 2025, also spoke publicly about the need for a “radical constitutionalism” and a tribune-like president who would dismantle the New Deal state, sell the scrap and return the nation to the status quo ante of the 19th century.

Much of the disruption and destruction of the past year and change is downstream of the revolutionary orientation of Roberts, Vought and the other alumni of Project 2025 who have taken up places in and around the Trump administration. To observe the aggrandizement of power in the executive, the decimation of the federal bureaucracy, the destruction of much of the nation’s medical, scientific and public health infrastructure and the broad attack on racial and gender equality is to see the many faces of a furious effort to restructure the existing nation to match the one envisioned by these far-right ideologues.

If this is all true, and it is, then any plausible response to Project 2025 must include a larger vision for the future of the American Republic. A Project 2029 cannot be a collection of Democratic Party agenda items. It must articulate a broad new conception of the nation’s political order — one that will guide the way a future Democratic-led government might wield power. Above all, Democrats must have a plan for reconstruction — for building something new on the wreckage of what President Trump, MAGA and the Republican Party have wrought — not restoration of what was.

Gabriel Malor
‪@gabrielmalor.bsky.social‬

Pictured are the two most flawed paragraphs in Callais. SCOTUS declares that *it*—and not Congress—gets to decide what legislation is "appropriate" under the Fourteenth and Fifteenth Amendments.

Which is how we come to today's SCOTUS majority blessing racist gerrymanders bc the VRA is "colorblind."



The maj. op. decided not only that Congress did not mean for the VRA to address racial vote dilution, but that Congress *can never* pass such legislation under the Fifteenth Amendment.

I think it would surprise the crafters of the 15th Amendment that when they wrote "The Congress shall have power to enforce this article by appropriate legislation," they had left it up to SCOTUS—and not to Congress in even the smallest measure—to decide what legislation is "appropriate."

Rick Hasen
‪@rickhasen.bsky.social‬

The majority’s opinion accompanying the ruling is astounding, and in fact is potentially just as significant as Callais despite its brevity and tentative nature given that it is a shadow docket ruling.

In today’s order, the Supreme Court makes the already difficult path of proving discriminatory intent even harder.

Building upon J Alito’s opinion in Abbott v. Perez, there’s now practically an unrebuttable presumption that a legislature is acting in good faith and therefore is not acting in a racially discriminatory way so long as the state can assert some pretextual nonracial reason for enacting its plan.
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Even if plaintiffs get past this new discriminatory intent barrier, the Court has now imported the Callais discriminatory effects test into a constitutional vote dilution analysis.
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So in these cases, plaintiffs will need to meet an impossible standard to prove effect, just as in a post-Callais Section 2 case, a standard which simply ignores the fact that when (white) Republicans discriminate against Democrats in the south, they are discriminating against Black voters.
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Finally, the opinion turns the equities on its head in many ways. The Court now says that a federal court cannot remedy a voting violation at the last minute under the so-called Purcell Principle, but states should go to town with new, unconstitutional plans:
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"While federal courts should not impose changes close to an election, States are free to decide for themselves whether last-minute changes to an election are in their best interests.”
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This is a license for putting last minute unconstitutional plans in place and sow chaos for election administrators and voters.

There's more in my full post, which concludes:

More and more, this Court shows itself to be little more than a partisan tool engaged in results-oriented jurisprudence, despite protestations to the contrary.
https://electionlawblog.org/?p=156541