227. "We're All Trying to Find the Guy Who Did This"
With both its ruling in Callais and its behavior before and since, the Supreme Court has not only accelerated the race to the redistricting bottom; it has placed itself *squarely* in the middle of it.
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I really didn’t want to write about redistricting again, but events in the latter part of last week seemed to demand it. It’s not just the brazen racism we’ve seen in some of the state legislatures that are rushing to eliminate majority-minority districts (e.g., “y’all need to shut up, boy”), or the not-exactly-obvious reading of Virginia law that the Virginia Supreme Court adopted to nix Virginia voters’ attempt to belatedly redraw the Commonwealth’s congressional districts, but also Alabama’s … aggressive … requests for emergency relief to the U.S. Supreme Court to let it get out from under earlier district court rulings—including ones the Supreme Court affirmed on the merits—so it can re-draw its maps in time for this cycle.
All of this came the same week that Chief Justice Roberts, in remarks at the Third Circuit Judicial Conference, complained about the public perception that the Court is “political.” In his words, “I think [people] view us as purely political actors, which I don’t think is an accurate understanding of what we do.” Shortly after that, he added that the Court is “simply not part of the political process.”
Roberts may tell himself that the Court is not part of the political process, but the (growing) evidence is overwhelmingly to the contrary. Indeed, the Court inserted itself into the midterm cycle—and set off this race to the bottom—knowingly (if not deliberately), both in what it ruled in Callais and in its willingness to issue the judgment immediately. That latter development was an unmissable signal that it was not averse to having this exact kind of chaos unfold on the ground—a point Justice Jackson made explicitly in her dissent from last Monday’s order. In her words, “as always, the Court has a choice.” By issuing the Callais judgment immediately, the majority “unshackles itself from [doctrinal] constraints . . . and dives into the fray.”
This, to me, is the key point: whatever one thinks of the ruling in Callais, the Court chose this chaos. And now that it is on the receiving end of applications from Alabama (and with an application from Virginia apparently on the way), to suggest the Court is not “part of the political process” is to deny the entirely obvious (and entirely predictable) consequences of the Court’s own behavior—not just in Callais, but before April 29 and since. Worse than that, all of these developments rather fatally undermine what I’d always understood to be the animating purpose of the so-called “Purcell principle”—which makes sense only as a strong norm against federal judicial intervention in the middle of election cycles. The Court’s own interventions are now wreaking havoc—and a majority of the justices either don’t think it’s their fault, or don’t care that it is. Either way, they don’t seem to mind the inconsistency—in a context in which it’s having the remarkably coincidental effect of benefiting Republicans.
The title of today’s post comes from a meme that’s derived from a sketch on the Netflix comedy series, I Think You Should Leave with Tim Robinson. In the sketch, after a hot dog-shaped car crashes into a clothing store, a man dressed in a hot dog costume attempts to blend in with the employees and customers trying to figure out what happened. As the costumed man says, “We're all trying to find the guy who did this.”
It’s a funny sketch, except that here, the “store” is the stability of our electoral process, and the guy in the hot dog costume is Chief Justice Roberts.
More on all of this below, but first, the (other) news.
On the Docket
The Merits Docket
Besides Monday’s order agreeing to issue the judgment in Callais immediately (about which I wrote Monday night), it was a very quiet week on the merits docket. Monday’s regular Order List included no new grants of certiorari (nor especially noteworthy denials). And we didn’t get any new rulings in argued cases, either. Given what’s coming up on the Court’s calendar (about which more in a moment), it was probably the quietest week on the merits docket that we’ll see until July.
The Emergency Docket
The emergency docket is, as is so often the case, a very different story.
Let’s start with mifepristone. Last Monday, Justice Alito granted a pair of administrative stays of the Fifth Circuit’s May 1 ruling that would have required in-person doctor visits for all mifepristone prescriptions nationwide. But as I noted last week, Alito imposes deadlines on administrative stays he doesn’t like—and his first deadline runs out today at 5 p.m. ET. That doesn’t mean the Court will rule by 5 p.m. today; there are lots of examples of Alito extending his deadlines (sometimes multiple times in the same case—as we saw, for instance, during the 2023 mifepristone litigation). But we should see either a full Court ruling or an extension sometime today.
And then, on Friday, Alabama filed three emergency applications seeking to get out from under district court injunctions that, for the moment, are blocking the Yellowhammer State from redrawing its congressional districts until after the 2030 Census. It also asked the Court to rule, one way or the other, by May 14 (i.e., Thursday). Justice Thomas, as Circuit Justice for the Eleventh Circuit, called for responses to the applications by 5 p.m. today, so these will also likely move very quickly.
The Week Ahead
Today is the last Monday until the end of the term on which we won’t get a regular Order List.1 But we expect one or more decisions in argued cases starting at 10 a.m. ET this Thursday (May 14)—kicking off a stretch in which the justices have at least one public session scheduled every week until their summer recess. The Court can always add additional public sessions (and may well do so as we get close to the end of June). But for now, we can expect a steady stream of merits rulings on Thursdays, beginning later this week.
And, of course, we also expect at least some movement on the mifepristone and Alabama applications. We may also see an application from Virginia challenging Friday’s Virginia Supreme Court decision, although my own view is that such an application has just about no chance of succeeding (more about why below). But that could also come (and go) quickly this week.
The One First “Long Read”:
The Political Court, the Midterms, and … Purcell
Before turning to the Supreme Court’s responsibility for what’s happening on the ground, it might be worth describing what’s happening on the ground—especially for those who haven’t been following closely. What follows are capsule summaries of the efforts afoot in four states (Louisiana, Alabama, Tennessee, and Florida) to respond directly to Callais—along with other developments we might see in the days to come.
What’s Happening on the Ground
Louisiana
Louisiana is ground zero for the post-Callais redistricting wave. Hours after the ruling, Gov. Jeff Landry issued an executive order suspending the state’s May 16 congressional primary—just as early voting was beginning—and pushed the primary back to July 15 (or a later date set by the legislature) to give lawmakers time to enact a new map. And as noted above, the Supreme Court last Monday granted the Callais challengers’ request to issue its judgment immediately rather than wait the customary 32 days, clearing the way for the state to redistrict in time for the 2026 elections. The legislature scheduled public hearings on a proposed new map that would include only one majority-Black district, and analysts expect Republicans (who currently hold four of six seats) to gain one or even two additional seats by reverting District 6 to a Republican-leaning configuration and potentially targeting the New Orleans-based District 2 as well. Lawsuits have already been filed in state and federal court challenging Landry’s primary postponement, but it’s not clear whether (or to what extent) those suits have a serious chance of succeeding.
Alabama
Alabama has operated since 2023 under a federal court-ordered map (stemming from the Supreme Court’s decision in Allen v. Milligan) creating a second substantially Black district now held by Democratic Rep. Shomari Figures. It also moved quickly to seize on Callais. As noted above, on Friday, Alabama asked the Supreme Court to pause the injunctions barring it from using the 2023 legislatively drawn map (drawn in response to Milligan) that the lower courts had struck down as a Section 2 vote-dilution violation. Also late last week, the legislature (which had been called into special session after Callais) enacted, and Governor Ivey signed into law, Act 2026-612—which provides for a special primary election for affected congressional districts “[i]n the event that” a federal court, “by issuing a judgment or by vacating an injunction, permits the reinstatement of the” 2023 Plan. The state’s primaries are currently scheduled for May 19, hence Alabama’s insistence that the Supreme Court rule by this Thursday.
Tennessee
Tennessee Gov. Bill Lee called a special legislative session shortly after Gov. Ivey did the same in Alabama, telling reporters that the General Assembly has “a responsibility to review the map and ensure it remains fair, legal, and defensible” in light of Callais. President Trump publicly stated he had spoken with Lee about redrawing the lines, and Sen. Marsha Blackburn called for a map giving Republicans an advantage in all nine of the state’s congressional districts. The clear target is the Memphis-based 9th District held by Rep. Steve Cohen—the only Democrat in Tennessee’s congressional delegation and a majority-Black district that Republicans have long wanted to crack but were constrained from dismantling under prior Section 2 doctrine. On Thursday, the legislature passed a new map splitting up that district. Tennessee’s August 6 primary leaves more procedural runway than Alabama or Louisiana, though the state would still need to reopen its candidate filing period, which closed March 10.
Florida
Florida’s redistricting effort overlapped with—and was explicitly justified by reference to—Callais. The Florida Legislature passed a new 28-district congressional map on April 29, 2026, the same day the Court handed down Callais, and Gov. Ron DeSantis signed the map into law last Monday. DeSantis had previously cited the looming Callais ruling as justification for redrawing the map, which is projected to net Republicans up to four additional U.S. House seats. The Equal Ground Education Fund and a group of Florida voters filed suit the same day the bill was signed, alleging that the new plan violates the state constitution’s Fair Districts Amendment prohibition on partisan gerrymandering. My own view is that there’s more than nothing to this argument, but all seven of the Florida Supreme Court’s current justices are Republican appointees—including six who were appointed by DeSantis.
Other states under consideration
Beyond the four states actively redistricting, several others are exploring action. South Carolina Gov. Henry McMaster and Mississippi Republicans have urged their legislatures to draw new lines, with each state having a single Democratic-held seat that the GOP would like to eliminate. And, of course, this is all just for this cycle; even states that have said they won’t pursue redistricting this year (like Georgia) have made no bones about their plans to do so next year, in time for the 2028 cycle.
In the other direction, as noted above, the Virginia Supreme Court on Friday, by a 4-3 vote, struck down Virginia’s state constitutional referendum to adopt a new map. Over the weekend, there was some suggestion that Virginia Attorney General Jay Jones will seek emergency relief from the U.S. Supreme Court. Of course, the U.S. Supreme Court generally lacks the jurisdiction to review a state supreme court’s interpretation of state law. It’s possible Virginia will try to invoke the “independent state legislature” doctrine as a basis for invoking the U.S. Supreme Court’s jurisdiction, but (1) that doctrine is one that those genuinely committed to the Constitution’s distribution of power between the federal government and the states should really despise; and (2) in any event, I don’t see any of the justices being in any hurry to give it teeth here.
Thus, all of these post-Callais developments are likely to give Republicans an extra 5–10 seats (depending upon what happens in November) in those states that are redistricting. And that comes alongside the Virginia Supreme Court ruling denying Democrats an extra 2–4 potential seats. It’s entirely possible that those margins will be a blip come November; wave elections have a way of turning these kinds of developments into marginalia (if not of turning gerrymanders into dummymanders). But there are still two points that can’t be denied: (1) this all just sucks; and (2) for three different reasons, none of it would be happening but for the Supreme Court.
The Supreme Court’s Responsibility
The three vectors along which the Court is responsible are easy enough to describe.
First, in its 5-4, 2019 ruling in Rucho, the Court knocked down the door to a partisan gerrymandering race to the bottom by holding that federal courts lack the ability to adjudicate partisan gerrymandering claims. Yes, there was partisan gerrymandering before Rucho, but it is objectively true that it has accelerated dramatically since then—again, not always to favor one party over the other, but to generally minimize the power of whichever party is in the minority in the body drawing the maps.
Second, taking together the rulings in LULAC (the Texas redistricting case) and Callais, the Court knocked over the last roadblock to states wiping out the political power not just of the minority party, but of minority groups within the state. It’s no overstatement to describe Section 2 of the Voting Rights Act as having served as a meaningful limit on partisan gerrymandering—in red and blue states, alike. But with Callais ratcheting up the intent requirement to prove a Section 2 violation, and with LULAC showing how the Supreme Court will treat district court rulings that find discriminatory intent, that roadblock is gone. Indeed, Section 2 was, in some respects, limiting the extremism of partisan gerrymandering. Without that limit, we could easily end up with all-Republican congressional delegations in Alabama, Louisiana, and Tennessee—states in which, in 2020, 37%, 40%, and 37% of voters ticked the box for Joe Biden. And whether or not blue states would’ve behaved so aggressively on their own, without Section 2, they have no legal reason, at least under federal law, to not respond in kind.
Third, although neither of those first two points are new, the current chaos is a direct result not just of the timing of the merits decision in Callais, but of the Court’s technical order agreeing to issue the judgment immediately last week. That intervention was understood—by everyone—as the justices signaling their willingness to have Callais go into effect this cycle, even though the Court could easily have structured and timed its ruling to prevent exactly that result. Again, back to Justice Jackson’s dissent from the judgment order, what we’re seeing play out in front of us is the result of a choice on the Court’s part. One can think Callais was rightly decided and still think the Court should’ve both anticipated and taken steps to avoid these immediate consequences.
And although the Court’s choice to not do so might seem defensible in a vacuum (and has been loudly defended by right-wing commentators), it runs into two problems for anyone who thinks that the Court should be consistent: For starters, it turns Purcell entirely on its head. The Court’s intervention in Louisiana will have the direct result of already-cast primary votes being thrown out. Likewise, if it grants the emergency applications in the Alabama cases, that will have the direct result of a federal court clearing the way for Alabama to redraw its primary maps within one week of the primary. There’s no universe in which Purcell makes sense as a limit on the equitable powers of lower federal courts but not the Supreme Court. And yet, here we are.
And Purcell aside, granting emergency relief in the Alabama cases, in particular, would bespeak blinding hypocrisy on the Court’s part—not only because it was this same Court that agreed with the district courts three years ago that Alabama had violated both the VRA and the Equal Protection Clause (in a majority opinion by Chief Justice Roberts), but because Justice Alito’s majority opinion in Callais labored mightily to distinguish that ruling—not to overrule it. (Among other things, and unlike what was true in Callais, one of the grounds on which Alabama’s 2021 map was struck down was as an unconstitutional racial gerrymander, and not just as a violation of the VRA.)
It’s technically true that the injunctions Alabama is now seeking to stay are not the same ones the Supreme Court affirmed in 2023. But they rest on the same legal conclusions about Alabama’s discriminatory intent. To nevertheless allow Alabama to effectively frustrate the mandate from the Court’s 2023 ruling in Allen v. Milligan would make it clear to everyone that this was all just a lie on the Court’s part—and that a majority of justices really are willing to rely on procedural rules as an excuse for forcing states to use unlawful maps when it benefits Republicans, but not when it harms them.
During the oral argument in Gill v. Whitford (one of the cases leading up to Rucho), Chief Justice Roberts raised the concern that the Court’s intervention in partisan gerrymandering cases might make the Court look too political, thereby undermining its legitimacy. As Roberts put it, if the Court started approving or striking down maps based on the proffered criteria for unconstitutional partisan gerrymandering,
the intelligent man on the street is going to say that’s a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.
If the hot dog costume fits…
SCOTUS Trivia: The Natural Court
Last week’s Justice Thomas-themed trivia got me going down a series of rabbit holes that led me to realize that I’ve never before mentioned the concept of a “Natural Court” in this newsletter. The term itself is a creature of mid-twentieth-century political-science scholarship about the Court, and has come to refer specifically to each contiguous period of time during which there are no new vacancies on the Court. Thus, we’re currently in a “Natural Court” that began on June 30, 2022—the day Justice Jackson joined the bench. (There is some debate about whether the period should be understood to end when a vacancy is created, or only when it is filled—which can cause a bit of variance in the data. But for purposes of this post, I use the latter, more common understanding; a Natural Court persists until someone new joins it.)
One can find lots of interesting trivia when looking at the different Natural Courts across history. But my favorite big trivia about the concept—and one I’ve alluded to before—is the trivia about which were the two longest Natural Courts, and the enormous gap between them and the third.
The two longest contiguous periods of service by the same justices are somewhat well-known among Supreme Court historians—the last 11+ years of the Rehnquist Court (from August 1994–September 2005); and the nearly 12 years of the Marshall Court from February 1812–September 1823. Indeed, a lot of law professors and currently practicing lawyers went to law school during the former period, myself included.
But the real trivia here is who’s in third place—because it’s a much shorter period. It turns out that the third-longest period with no membership changes on the Court belongs to the Waite Court—which stayed together for only five years and nine months (2,115 days, to be precise) from April 1882 to January 1888. That figure puts it exactly nine days ahead of the fourth-longest Natural Court (the Burger Court from December 1975 to September 1981), but still way behind the top two.
Today, in contrast, is the 1,411th day of the current Natural Court. Whether or not we make it to 2,115, I don’t think it’ll challenge either of the frontrunners.
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For me, any doubt about the politicized nature of the Court ended with Bush v Gore.
Tom Weeks
Hmm—why bother with elections at all when “proper” judges can decide right now? White man here, white man there … white man everywhere!