Jonathan P. Baird

In a little-noticed decision on its shadow docket, the U.S. Supreme Court’s conservative majority allowed Texas to use a racially gerrymandered congressional map in next year’s mid-term election. The map Texas drew was designed to disadvantage minority voters and add five congressional seats for the Republicans.

The Court was doing a big favor for Donald Trump. Redistricting is typically done every 10 years. The Court was responding to Republican panic about the 2026 mid-term elections. Fearing big losses, Trump initiated a gerrymandering arms race to gain advantage in as many states as possible for the Republicans. The purpose was to improve the chances of electing Republicans from Texas to Congress.

It is notable that the Supreme Court had previously held for more than 30 years that the government violates equal protection when it uses race as a predominant factor in districting. That is exactly what Texas did.

When Texas drew these racially gerrymandered districts, a legal challenge ensued. A three judge panel in the federal court found tha Texas map was unconstitutionally racially gerrymandered. The Court said the map was designed to dilute the power of black and brown voters.

The conclusion was not superficially arrived at. The judges had conducted a nine day hearing with over 20 witnesses with thousands of exhibits introduced. The factual record was over 3,000 pages. In a 160 page decision, the majority opinion, authored by a judge appointed by Trump, found Texas impermissibly used race as a basis for drawing election districts.

The decision would have prevented Texas from slicing and dicing Latino voters into districts for the purpose of weakening their voting strength. Texas is only 40% white but white voters control 73% of the state congressional seats. The trial court decision, if it had been put into effect, would have forced Texas back to the 2021 map which had already given the Republicans an advantage.

What was upsetting about the Supreme Court’s decision was not only the bottom line result. It was the way the decision was effectuated, once again on the shadow docket where decisions are offered without any substantial rationale and with no oral argument. There is no solace in the fact the decision is preliminary. The Court absurdly said that Texas made a strong showing of irreparable harm and that the equites and the public interest favor it. The idea this decision is in the public interest is laughable.

In response to a detailed 160 page opinion, the Court put forth five paltry, embarrassing paragraphs. To quote Justice Elena Kagan’s dissent, the Court intervened “ based on its perusal, over a holiday weekend of a cold paper record”. Kagan went on:

“We are a higher court than the district court but we are not a better one when it comes to making such a fact-based decision.”

The Supreme Court is a court of appellate jurisdiction. Its role is supposed to be limited since it does not re-try the facts. The Supreme Court and appellate courts generally are bound to accept the trial court’s fact-finding unless it is clearly erroneous.

In reversing the federal district court, the Supreme Court showed disdain and disrespect for a lower court. With barely any explanation, the Court majority brushed aside very detailed fact-finding. While the Court can say what the law is, they don’t have the power to say what the facts are. In this case, they swatted the facts away and erased them.

There is a pattern of the Supreme Court doing that. Chief Justice John Roberts did exactly the same thing in the Shelby County case which eviscerated the Voting Rights Act.

To say it is a bad look doesn’t go far enough. Lawyers and judges should be declaring a five alarm fire. The Court has been corrupted. It is now a Republican Party subsidiary. They have sided with the Trump regime in 90% of shadow docket cases that have reached them. The best that can be hoped for is that fear of loss of all credibility will rein them in occasionally.

The justifications offered by the conservative majority were exceedingly weak. They said the lower court failed to honor the presumption of legislative good faith. But the Texas legislature did not even try to camouflage this racial gerrymander as simply a partisan one. Texas admitted the use of race. The High Court also chastised the lower court for not coming up with its own viable alternative map but that doesn’t make the racial gerrymandering go away.

The Court said the challenge to the new districts came too close to the next election. But when the trial court made its decision, the election was a year away. The plaintiffs had filed suit as early as they possibly could. The Supreme Court is, in effect, encouraging states to monkey around with gerrymandering before elections.

To appreciate the harm the Texas redistricting case represents, a wider angle lens is required. The Supreme Court has been reading the 14th Amendment out of the Constitution. Given the history of racism and white supremacy in the United States, we need to understand that the whole point of the 14th Amendment was the recognition of Black people as full citizens. Full citizenship, requires, among other things, equal voting rights. The Supreme Court has entirely lost that thread.

The historian Eric Foner once wrote that the 14th Amendment was the most consequential addition to the Constitution since the Bill of Rights. Sherrilyn Ifill says it was our nation’s reset after the Civil War but we have not honored its legacy. The reset was about creating a multi-racial democracy.

For 100 years, the 14th Amendment was almost snuffed out. It came back to life in the 1960’s but it has been strangled again. The Supreme Court has almost murdered it. I would suggest that re-invigoration of the Reconstruction amendments, the 13th, 14th and 15th is one means to advance the goal of multi-racial democracy. Those amendments don’t have to be enfeebled. Some day lawyers and jurists will bring them back to life.