| Earlier this year, Justice Ketanji Brown Jackson penned one of the more remarkable passages to ever appear in a Supreme Court opinion: “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.” The veracity of her assessment rings truer by the day. |
| The Court, in a thin-on-legal-reasoning, yet somehow even thinner-on-facts decision late Thursday, decreed that Texas may use its newly drawn congressional map—designed to benefit Donald Trump and Republicans—in the 2026 midterm elections. In a characteristically incisive piece for Verdict, Professor Michael Dorf skewered the Court’s reasoning, noting in particular that “[t]he Court twisted itself around about the presumption it was applying because of its own presumptuousness.” |
| Recommending without repeating Professor Dorf’s analysis, this piece zeroes in on the Court’s disingenuous treatment of the case from a timing perspective. In a stunningly thoughtless passage, the Court majority chastised the lower court, noting that “courts should ordinarily not alter the election rules on the eve of an election” and asserting that “[t]he District Court violated that rule here. The District Court improperly inserted itself into an active primary campaign, causing much confusion.” |
| Keep in mind that, even apart from the merits of the issues, the District Court didn’t insert itself into anything whatsoever, much less in an untimely fashion. Rather, it promptly and thoroughly considered a challenge filed virtually immediately after the adoption of the last-minute, White House-requested, mid-cycle gerrymander. The timing is a function of the gerrymander, not the court that considered its legality. |
| The majority may as well have criticized the lower court, including the Trump appointee who authored the lower court opinion, for failing at time travel. |
| As Justice Elena Kagan’s dissent puts it: “even supposing it is now the ninth or tenth hour, whose choice was that? It was of course the Texas legislature that decided to change its map six months before a March primary. The plaintiffs could not have moved any faster: They requested an injunction before the new law was even signed.” |
| Rucho’s Abandonment of Representative Government |
| The Court’s 2019 decision Rucho v. Common Cause was more than a declaration of judicial modesty. It was the Court stepping back from its constitutional obligation to ensure that representative government remains representative. In holding that partisan gerrymandering claims were nonjusticiable, the Court prioritized the prerogatives of self-interested politicians over one-person, one-vote principles and the structural commitments of the Reconstruction Amendments. The decision did not merely tolerate manipulation; it effectively encouraged it by assuring states that the federal judiciary would look away. |
| Texas’s new congressional map is the predictable product of that invitation. Communities of color were carved apart or submerged into sprawling districts designed to dilute their electoral influence. The discriminatory effect was not subtle, nor, as the lower court found, was the intent. Rather than hiding behind complex algorithms or sophisticated political-engineering tools, the mapmakers often produced districts whose racial logic was painfully transparent. |
| Chaos Reigns: The Redistricting Arms Race Meets the Election Calendar |
| If the legal landscape is volatile, the logistical environment is even worse. Across the country, the redistricting arms race has become chaotic. If, as of Thursday, the center of the gerrymandering solar system was Washington, D.C., via Austin, Texas, one day later, it had shifted to Indianapolis, where the Indiana state House easily passed a measure designed to transform the current 7-2 GOP majority into a 9-0 sweep. As for the state Senate? Establishment holdouts, including within the state GOP, are on notice that pro-voter, level-playing-field advocates will be crushed. Turning Point Action and major Trump-aligned PACs made it clear: back the map or face well-funded primaries through 2028. The message is unmistakable—fall in line or else. |
| Next stops? Tallahassee for Republicans, Richmond for Democrats, and Jefferson City, Missouri, for redistricting-focused court watchers. Other states face daunting timing problems. Illinois’s filing deadline has already passed. If Democrats there attempt a post-deadline redraw, the state would have to move the primary date, impose a new signature-gathering period, and conduct a dual-ballot process including candidates from both filing windows—a legal and logistical quagmire almost guaranteed to trigger litigation. Or maybe not? After all, as Vox’s Ian Millhiser writes, the Court’s ruling Thursday “imposes such heavy burdens on gerrymandering plaintiffs that few, if any, such plaintiffs will be able to succeed in future cases.” |
| A Looming Supreme Court Decision on the Voting Rights Act |
| The uncertainty is amplified by a case out of Louisiana that the Supreme Court heard in October, involving a key provision of the Voting Rights Act. Early indications from oral arguments suggest the Court may sharply limit the ability of lawmakers to consider race when drawing districts—even for remedial purposes. If the Court adopts that view, states across the South could rapidly redraw maps that have been shaped for decades by VRA requirements. Analysts estimate that Republicans could gain as many as a dozen seats in the House as a result. |
| If upholding racially discriminatory redistricting and then striking down racially remedial redistricting strikes one as quizzical, it should. As Professor Eric Segall writes, “white mapmakers trying to increase minority participation in our government are doing something completely different than white mapmakers trying to increase white domination of our government.” And yet. |
| The Louisiana outcome, too, is shaped by the calendar. Except that, in this instance, the Court is responsible for the very time crunch it unfairly criticized the lower court for in the Texas case. Why? Because the October oral argument was a re-argument, per the Court’s own order, of a case initially argued in March of this year. Not to put too fine a point on it, but in addition to the three-judge district court in Texas conducting the kind of fact-intensive inquiries inherent in a nine-day evidentiary hearing, that court, unlike the Supreme Court, did not take a summer recess between hearings in the same case. One Court goes traveling. The other court gets criticized by the travelers for its inability to time-travel. |
| Some states, recognizing the danger, have begun to shift primary dates in anticipation of the Court’s ruling. Louisiana recently moved its primary from mid-April to mid-May to buy more time. But no amount of foresight can insulate the system from the structural instability created when maps, deadlines, and judicial timelines collide. |
| The Bipartisan Promise of Reform—and the Opportunity the Court Continues to Miss |
| In an era when almost every political issue is polarized, opposition to gerrymandering should offer a rare opportunity for bipartisan agreement. Some of the most compelling critics of partisan redistricting have come from leaders who are not ideologues but institutionalists. Arnold Schwarzenegger, for instance, entered California politics shocked by the grotesque districts engineered by his state’s Democratic legislature. Nicknamed “the swan,” “the Jesus district,” (for effectively walking on water) or the 385-sided “insect,” these contorted lines convinced him that gerrymandering—by either party—stripped citizens of meaningful political power. The result was California’s independent redistricting commission, one of the country’s most respected structural reforms. |
| California’s abandonment of that reform in favor of partisan, retaliatory redistricting reflects a harsh dilemma: unilateral reform is unilateral disarmament when the Supreme Court declines to enforce the Constitution’s structural commitments. |
| Rucho did more than close courthouse doors—it signaled that distortions of representative government are but RSVPs to Supreme Court-embossed invitations. The current mid-cycle redistricting chaos, much of it driven by states responding to each other’s increasingly extreme maps, reflects that reality. In sum, Calvinball may result in short-term partisan wins, but in the long term, the victories come at great cost to America—Republicans and Democrats alike. |
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