Mark Joseph Stern
‪@mjsdc.bsky.social‬

Virginia Democrats have filed a long shot emergency application asking SCOTUS to stay the Virginia Supreme Court's decision against the new, voter-approved congressional map. https://www.documentcloud.org/documents/28113281-25a-application-for-stay/

Virginia Democrats want SCOTUS to restore the 10-1 congressional map that voters approved in April.

I think the VA Supreme Court decision was atrociously wrong, but it was clearly rooted in state law. SCOTUS doesn't have strong grounds to intervene in this dispute—there's no federal question.

I'm also nervous about setting a precedent whereby SCOTUS can overrule state courts' interpretation of state redistricting law. In the long run, this expansion of SCOTUS' authority would benefit Republicans over Democrats and give the conservative supermajority more power to help the GOP rig maps.

The Democratic Party’s path to a majority in the U.S. House this November just got significantly narrower. On Friday morning, May 8, 2026, the Supreme Court of Virginia invalidated the redistricting referendum voters passed in April that would have given Democrats up to 4 additional seats in the U.S. House of Representatives (though they will likely pick up two anyway in a “blue wave” midterm).

Writing for the majority, Justice D. Arthur Kelsey declared the referendum "tainted" by a technical constitutional violation about when a general election actually happens — specifically, whether it's a single day or the whole multi-day voting process that includes early voting. Virginia's constitution requires the General Assembly to pass a proposed amendment, hold an intervening House of Delegates election, then pass it again. Clear enough, right?

Well, not according to Kelsey. The Commonwealth argued the relevant election was just Election Day (Nov. 4, 2025), so the legislature's Oct. 31 vote cleared the bar by four days. The Court rejected that, holding that an "election" encompasses the combined act of casting and receiving early, absentee, and in-person ballots across the entire voting window. Because early voting had begun Sept. 19, the Court ruled the Oct. 31 vote came in the middle of the intervening election rather than before it, thus invalidating the amendment and the new map.

So now we are left with the following map of the number of seats targeted by Democrats and Republicans (drawn by The Downballot’s Stephen Wolf), in eight states that have new maps in place for 2026.

The New York Times published a flurry of internal Supreme Court memos related to its unsigned, unexplained February 2016 order that blocked the Clean Power Plan, an Environmental Protection Agency rule that required states to implement plans to reduce carbon emissions within their borders, from taking effect. At the time, this was (to use a legal term of art) pretty weird: When the Court issued its ruling, a Republican-led challenge to the rule was still pending before a federal appeals court in D.C. By leapfrogging that court, the justices extended special treatment to this country’s fossil fuels industry, effectively concluding that the viability of its business model was simply too important to leave to the usual legal process.

The Court’s order gave rise to what is now known as the Supreme Court’s “shadow docket”—a form of expedited review that the conservative justices have since wielded at their convenience to stymie Democratic presidents on the one hand, and, on the other, to give President Donald Trump just about anything he wants. The memos obtained by the Times make clear that one of the principal reasons the Court acted as it did is that Chief Justice John Roberts, a lifelong Republican, really did not like what would have been President Barack Obama’s signature climate initiative, and decided to use the powers of his office to spike it.

There is, as they say, a lot going on in these memos. But it is worth remembering that of the many, many justices who would bristle at the notion that the Court would ever allow partisan politics to taint its deliberative process in this manner, none do so quite as officiously as Roberts. In 2018, after Trump disparaged a particular court ruling as the work of an “Obama judge,” Roberts issued a rare public rebuke: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

During his 2005 Senate confirmation hearings, Roberts tried to assuage concerns about his long career in Republican politics by emphasizing a judge’s obligation to demonstrate the “humility to recognize that they operate within a system of precedent.” This website takes its name from the baseball umpire analogy he adopted as a mantra during those hearings: If confirmed, Roberts said, he would always remember that his role is to apply the rules, not to make them—in his words, to “call balls and strikes, and not pitch or bat.”

The Times’s reporting is only the latest bit of proof that Roberts has been merrily lying to you all along.

Democratic judges have an uphill battle to change the 6-1 Ohio Supreme Court, where Justice Jennifer Brunner is an island unto herself in a sea of Republican justices. But she and another judge making a run for a seat in November sense a change in the winds when it comes to Democratic support, both in the judicial system and elsewhere.

“As I travel the state, I am taken by the movement, the energy, the sort of undertow that I’m sensing from the counties around the state,” Brunner said at the Ohio Democratic Party’s primary night event on Tuesday.

Brunner has been on the court since 2021, but until last year, she shared the bench with two other Democratic justices.

Races for the state’s top judicial positions were made explicitly partisan when Republican state lawmakers added party labels to the races starting in 2022. Since that change, the court has gone from 4-3 to 6-1 Republican.

“I don’t mind it,” Brunner said. “But I sure would like a little more company.”

The most recent general election in 2024 saw the defeat of Justice Melody Stewart and Justice Michael P. Donnelly, in favor of Republican justices Joe Deters and Megan Shanahan.

As Republican Indiana state senators lost their seats this week in a revenge-fueled primary after defying President Donald Trump on redistricting, the prominent Maryland Democrat who also sank partisan gerrymandering took note.

Maryland Senate President Bill Ferguson (D-Baltimore City) faces a Democratic version of that retribution, drawing the most difficult primary challenge of his 16-year career.

Like the ousted Indiana Republicans, Ferguson defied demands from his party’s leaders to create new congressional maps to boost chances of controlling the U.S. House. He, too, faces political consequences after rejecting efforts to eliminate the state’s one GOP-leaning House district.

While the Maryland-style payback from fellow Democrats does not resemble the overt revenge campaign waged in Indiana by Trump and his Republican allies, Ferguson is left aggressively defending a seat unlike ever before.

Gov. Wes Moore (D), who led the redistricting charge, pointedly did not include him in a list of more than 160 primary endorsements in state and local races released Thursday, boosting Democrats the governor said would “push back and push forward.”