In seemingly the blink of an eye, the gerrymandering wars have turned against Democrats — all because of unelected judges imposing their views over the will of voters and elected officials.
If Democrats are able to win back power despite the new electoral hurdles the courts have placed before them, there is only one path forward: judicial reform and, in particular, adding new justices to the Supreme Court. Indeed, packing the court may soon become a new litmus test for Democratic politicians — and it should be. Any hope of Democrats holding power and enacting their agenda will rely on undoing the Supreme Court’s partisan lean.
GOP-controlled Southern states quickly proved why the Voting Rights Act was so necessary.
Over the weekend, Democrats focused their ire on Virginia’s Supreme Court after four of the court’s seven justices threw out the results of a statewide redistricting referendum in which three million Virginians cast a ballot. With that ruling, the court undid Democratic efforts to flip four House seats from red to blue.
But the real culprit for the Democrats’ sudden reversal of fortune is the conservative majority sitting on the Supreme Court in Washington. It’s because of their actions that Virginia Democrats were pushed to redraw their congressional maps in the first place.
Back in 2019, the Supreme Court issued one of its most damaging decisions in recent memory. In Rucho v. Common Cause, the court’s conservative justices ruled that even though “excessive partisanship in districting leads to results that reasonably seem unjust,” federal courts simply could not adjudicate partisan gerrymandering.
“For the first time ever,” Justice Elena Kagan wrote in her dissent, “this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Writing for the conservative majority, Chief Justice John Roberts said that “the court’s decision does not condone excessive partisan gerrymandering.” But that’s precisely what has happened since — and until recently, almost exclusively to the benefit of Republicans.
Last month’s ruling in Louisiana v. Callais compounded the damage. The court’s conservatives eviscerated Section 2 of the Voting Rights Act, which was enacted to stop Jim Crow laws that limited Black political participation and had provided voters a legal path to challenge racially discriminatory election laws.
Incredibly, Justice Samuel Alito made clear in his opinion that states can now defend themselves against claims of racial gerrymandering by arguing that they are merely engaged in partisan gerrymandering — even though, in the South, limiting Democratic representation and Black political representation is in effect one and the same. But in allowing states to use partisan gerrymandering as a cover for racial gerrymandering, Alito is not merely condoning partisan gerrymandering — he’s endorsing it.
GOP-controlled Southern states quickly proved why the Voting Rights Act was so necessary.
it’s impossible to disentangle the court’s decision-making from a desire to help Republicans win elections.
Tennessee Republicans quickly to carved up Memphis to remove the state’s only Black-majority district. Louisiana Gov. Jeff Landry suspended House primary elections in which some 80,000 votes had already been cast so the Republican-controlled state Legislature could erase a majority-Black district. Republicans in Alabama, Mississippi and South Carolina may follow suit and, in effect, gut Black representation across the South.
The Voting Rights Act, a triumph of the Civil Rights Movement, has been destroyed by partisan Republicans masquerading as Supreme Court justices. (Though President Trump remains unsatisfied. In a Sunday social media post complaining about the court’s hostility to his administration’s stance on birthright citizenship, Trump wrote, “In fact, I should be the one wanting to PACK THE COURT!”)
As Kagan wrote in her dissent in Callais, the Voting Rights Act brought America “closer to fulfilling the ideals of democracy and racial equality,” and the law had “repeatedly, and overwhelmingly, reauthorized by the people’s representatives in Congress.”
But none of that mattered to the court. Indeed, it’s impossible to disentangle the court’s decision-making from a desire to help Republicans win elections.
Last December, a district judge in Texas, after nine days of hearings and testimony from 23 witnesses, issued a 160-page decision throwing out Texas’s mid-decade gerrymander. The Trump-appointed judge found overwhelming evidence that Texas had created a racial gerrymander.
Without even bothering to hold a hearing, the Supreme Court breezily dismissed the lower court’s findings and criticized it for having “improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.”
Yet in the Callais decision, the Supreme Court granted Louisiana’s request to dispense with the usual waiting period between issuing the decision and sending it to a lower court. By doing so, the justices are allowing the state to expedite rewriting its congressional maps. If this isn’t an example of the Supreme Court improperly inserting itself into “an active primary campaign” and “causing much confusion,” it’s hard to imagine what would qualify.
But of course the conservative justices are more than happy to violate past precedent and put their fingers on the scale to help Republicans.
If a law as sacrosanct as the Voting Rights Act is vulnerable from the Supreme Court’s meddling, no legislation passed by Democrats will be safe. u
To be clear, this is not just a problem in the federal courts. Last month, Florida Republicans passed their own partisan gerrymander even though the state’s constitution, thanks to a 2011 voter-passed referendum, explicitly forbids partisan gerrymandering. Nonetheless, few political observers expect Florida’s Republican-leaning state Supreme Court to overturn the new maps.
The courts’ increasingly partisan lean puts Democrats in a near-impossible situation. Even if Democrats control the House, Senate and White House come January 2029 — still a reasonable possibility — there’s every reason to believe that the court’s conservative majority will use its judicial veto to undermine Democrats’ political and legislative objectives.
This is why an increasing number of Democratic politicians and pundits are calling on the party, if it takes back power, to pack the court with liberal judges in order to undo the conservative majority’s political stranglehold. And they are right to do so.
But what has so far been a trickle could soon become a torrent. A political environment where the nation’s highest court is the GOP’s political trump card is not one in which Democrats can engage in normal politics. They will be operating on a playing field that, because of the court’s interventions, will be tilted toward Republicans.
If a law as sacrosanct as the Voting Rights Act is vulnerable from the Supreme Court’s meddling, no legislation passed by Democrats will be safe. Adding new justices is a more-than-reasonable response to a Supreme Court that continually acts with thinly veiled partisan zeal.
Critics will argue that if Democrats take this momentous step, Republicans will respond in kind when they retake power.
Let them. For too long, the court’s decisions have been an abstraction to voters — seemingly immune from political considerations. But if tit-for-tat court packing is the future of American politics, then let voters decide if they prefer a conservative or liberal Supreme Court.
But the larger issue for Democrats is how they wield political power. Last year, when it seemed obvious that Republicans were in danger of losing their House majority, Trump pushed Republicans to engage in an unprecedented wave of mid-decade redistricting. The GOP is now poised to pick up between eight and 10 House seats — in effect insulating the party, at least in part from voter anger.
None of this would be happening if not for the Supreme Court’s partisan interventions.
This electoral advantage for Republicans doesn’t even take into account the high court’s near-constant judicial interventions on behalf of the Trump administration. Since Trump took office, the court has issued so-called shadow docket rulings in favor of the administration’s requests for relief 80% of the time — often with little or no explanation. In 2024, the justices played a delaying game with Trump’s federal indictments before the court issued what amounted to a get-out-of-jail-free card for presidential misconduct. And of course, there was the 2022 decision that undid the 50-year precedent of Roe v. Wade and led to the criminalization of abortion in dozens of states. In short, the court’s political and ideological interventions, often discarding well-established precedents, have been going on for some time and, almost exclusively, at the expense of Democrats.
Democrats have little choice but to respond to the GOP’s efforts to increase their political advantage (as they tried to do in Virginia). Adding new judges to the court is not the last step in that process, but it’s essential. To defeat Republicans, they must act as ruthlessly as Republicans.
Michael Cohen is the publisher of the newsletter Truth and Consequences and hosts the weekly podcast “That ‘70s Movie Podcast.”