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 decision in Allen breaks a rule that the Supreme Court announced one month ago
At the end of April, the Court’s Republican majority handed down Louisiana v. Callais, which completed a project that at least one member of that majority began more than four decades ago.
In 1982, President Ronald Reagan signed legislation expanding the Voting Rights Act, the federal law barring race discrimination in elections. Among other things, the 1982 amendment established that many state election laws that have a negative impact on nonwhite voters are illegal, even if the plaintiff challenging that law cannot prove that the law was enacted with racist intent.
When this bill was being debated in Congress, however, there was a conservative faction within the Reagan administration that opposed it, and which unsuccessfully urged Reagan to veto it. Future Chief Justice John Roberts was a member of this faction, and as a fairly junior lawyer wound up doing much of the granular work that is often assigned to young attorneys. Among other things, Roberts wrote about two dozen memos opposing the 1982 amendment, and he drafted speeches and talking points for senior lawyers who also opposed it.
Although Roberts’ faction failed in 1982, Roberts held onto his grudge against the Reagan amendments to the VRA, and his faction eventually took over the Republican Party. All six of the Court’s Republicans joined Callais, which repealed the 1982 amendment and imposed a new rule requiring voting rights plaintiffs challenging a gerrymandered map to show that state lawmakers acted with racist intent.
Under Callais, a plaintiff bringing such a challenge may only prevail “when the circumstances give rise to a strong inference that intentional discrimination occurred.”
In the Allen case, however, a three-judge panel that included two Trump-appointed judges determined that “we cannot understand [Alabama’s new congressional maps] as anything other than an intentional effort to dilute Black Alabamians’ voting strength.” The panel reached that conclusion in an astonishingly thorough 571-page opinion handed down in 2023. After Callais, the Supreme Court ordered that panel to reconsider its ruling, and the panel did not change its mind — concluding again that Alabama engaged in intentional race discrimination.
Among other things, the panel pointed out that the 2023 Alabama law drawing the new maps achieved its racial goals by holding together a majority-white area of the state known as the Gulf Coast, while dividing a Black-majority region known as the Black Belt. Incredibly, the 2023 state law said that the Gulf Coast “shall be kept together to the fullest extent possible,” in part because Alabama lawmakers wanted to preserve its “distinct culture stemming from its French and Spanish colonial heritage.”
The state legislature, in other words, wrote into the statute itself that it wished to preserve a European American region of the state’s ability to elect its preferred representative, while the same law also broke up an African American region of Alabama. If that doesn’t give rise to a strong inference that intentional discrimination occurred, nothing does.
The Republican justices’ latest opinion in Allen, meanwhile, is only four pages long. And it spends only a single sentence responding to the hundreds of pages of evidence the lower court compiled, which shows that Alabama engaged in intentional race discrimination. According to the Republican justices, the lower court “did not heed the presumption of legislative good faith” that judges are supposed to apply to state lawmakers who are accused of race discrimination.
So, to summarize, just over one month after the Court’s Republicans declared in Callais that racial gerrymandering plaintiffs could still prevail if they can show that a state’s legislature engaged in intentional race discrimination, those same Republicans appear to have abandoned that rule. And the upshot is that the Republican Party gets an extra seat in the US House.
The GOP justices’ Allen opinion isn’t even consistent with their previous decisions in the same case
As Sotomayor explains in her dissent, there are several other examples of the Republican justices taking one position in previous decisions, then abandoning them in order to hand a victory to Alabama Republicans.
The most galling is that, in Callais, the Republican justices explicitly stated that “we have not overruled Allen,” a reference to the Supreme Court’s 2023 ruling in this very same case, where the Court struck down Alabama’s maps and ordered it to draw new ones. It’s now clear that the Republican justices were lying when they said that in Callais. The Court’s 2023 ruling in Allen held that Alabama must draw maps with at least two Black congressional districts, while its 2026 ruling in Allen holds that Alabama does not need to do so after Callais. So Callais overruled the 2023 opinion in Allen.
Sotomayor also spends much of her opinion warning that the Court’s latest Allen decision is likely to cause “chaos” in Alabama’s upcoming congressional election, because the primaries in that election are supposed to take place on August 11, leaving the state with very little time to complete the time-consuming task of going through each voter’s record to make sure they are assigned to the correct district.
According to Sotomayor, after a federal district court first struck down an earlier version of Alabama’s maps in 2022, the state told the Supreme Court that it needed to block that decision because the district court handed it down four months before a primary election, and “four months was not enough time to change congressional maps.” Sotomayor’s Republican colleagues appear to have agreed with that claim. Indeed, when the Court agreed to block the 2022 decision, two justices warned that the lower court’s order “would require heroic efforts by . . . state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.”
So, when a lower court handed down a decision that would have benefited the Democratic Party by requiring Alabama to draw a map that would elect an additional Black Democrat, the Republican justices appear to have concluded that four months wasn’t enough time for Alabama to comply with that decision. Now, however, those same justices have decided that the state can pull off the same “heroic efforts” in just two months.
In fairness, the Court’s Republicans have occasionally ruled against their political party when that party presents particularly weak arguments. In 2020, for example, the Supreme Court famously rejected President Donald Trump’s attempt to overturn his loss to former President Joe Biden.
As I wrote at the time, handing a victory to Trump would have required herculean efforts by the justices, because Biden won by a wide enough margin that the Court would have needed to overturn the election results in three different states. That was too much even for this Supreme Court.
But this is still the same Supreme Court which held in 2024 that Trump is allowed to use the powers of the presidency to commit crimes. So the Republican justices are willing to do extraordinary favors for their political party and its leadership, even if they don’t do the GOP’s bidding in literally every case that comes before them.
It is safe to say, in other words, that the Republican justices are putting a thumb on the scales of the 2026 midterms. That’s not the same thing as putting a one-ton sack of concrete on those scales. But the most reasonable explanation for the GOP justices’ behavior is that they want to give an advantage to the Republican Party and are willing to contradict their own past decisions in order to do so.
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