How Much More Dead is Democracy After the Supreme Court's Outrageous Gerrymandering Ruling?
"US supreme court ‘demolishes’ Voting Rights Act, gutting provision that prevented racial discrimination." That is the headline atop The Guardian's news article reporting on the US Supreme Court's insane decision yesterday in Louisiana v. Callais, in which all six Republican-appointed jurists voted to make it possible for more Republican-run states to gerrymander even more Democrats (especially Black Democrats) out of the House of Representatives.
When I wrote my most recent column discussing gerrymandering two days ago, I had no idea that Callais was soon to be announced. Certainly, Professor Segall's column here yesterday was completely accurate in predicting the outcome of the case, but even his timing was pure coincidence. Here are his first three sentences:
Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA).
Can't nail it much better than that.
Meanwhile, when the decision came down, Professor Dorf posted this on Bluesky: "The fundamental untruth in Alito's majority opinion in Callais is the assumption that the state's political goals--protecting Republican incumbents & other R seats--have nothing to do with race, as though racially polarized voting does not reflect that the GOP appeals to & promotes white supremacy."
My analysis on Tuesday, meanwhile, was not focused on the Court at all. I did, however, predict the Roberts Gang's likely role in a column from February of this year, "What Would 'Nationalizing the Election' Look Like, and Could It Be Stopped?" which I cited in Tuesday's column. I wrote:
What about the Supreme Court? Even before Trump came along, the challenge to the Affordable Care Act that led to the NFIB v. Sebelius Supreme Court ruling exposed the opportunism of the Court's supposedly principled conservatives. ... Very cool-headed people at the time were predicting that the Court might reject that claim on a 7-2 or even 8-1 vote, based on what was then known about the Republican-appointed justices' purported views. But in the end, all five (including John "balls 'n' strikes" Roberts) invented a completely ahistorical, atheoretical, and atextual action/inaction distinction to reach the outcome that they wanted to reach.
So as far as the other branches of the federal government go, we can expect all opposition [to Trump's efforts to nullify or steal the midterms] to evaporate. ...
And the Court will do what it did in the Muslim ban case, the presidential immunity case, the racial profiling case (Noem v. Perdomo), the insurrection clause case, and on and on. Indeed, given their track record, it would not be beyond the Republican Six's collective imagination/chutzpah to declare that they should not rule on a case having to do with elections at all, because to do so would be to meddle in political questions. After all, even before the most recent Republican appointment to the Court, the other five conservatives announced that they were content to treat elections -- elections! -- as non-justiciable for being political questions. The illogic has always been stunning: Unelected judges must not intervene in issues that are left to the political branches, because those are the people's representatives, so we cannot think about intervening even when someone presents a claim that the system is not in fact representing the people. Those who hope that the Court's Republican bloc would stand in the way of their patrons' holding onto power are kidding themselves.
Any remaining doubts about this hyper-conservative Court majority have now been put to rest. Note, however, that nothing in my block quote above was addressed to anything like Callais, although I am honestly surprised that I did not think to include Shelby County -- Roberts's first big swing of the sledgehammer against voting rights thirteen years ago -- in my short list of this Court's horrible decisions. Fortunately, Professor Segall did not forget, noting yesterday that the majority ruling in that earlier case was "based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth."
I will leave it to my co-bloggers to critique the unconstitutional tap-dancing that has led us to the point where the Voting Rights Act is a dead letter. There is surely plenty to say on the jurisprudential side of things, but here I want to move back to my analysis of how gerrymandering will play out in the upcoming midterms.
In one of my columns in Review of Democracy last week, I wrote that efforts by state-level Democrats to fight gerrymanders with gerrymanders, even though some have been successful, are ultimately not going to save the day, "because gerrymandered Republican state legislative majorities control too many states." Although I allowed in Tuesday's column that I might have been "wrong to say that Republicans 'control too many states,'" Callais immediately put Republicans in red states back to work creating extra-super-duper-gerrymandered maps. It is too soon to say how many seats Republicans will swipe -- on top of their already-gerrymandered sliver of a majority -- but it could reach double digits.
For current purposes, I am willing once again to set aside all of the other ways that I think the Trumpists will make a mockery of the midterms (again, with the full backing of six Supreme Court votes), which allows me to explore in more detail the fact that even extreme gerrymanders are not always foolproof.
Imagine a state with ten congressional districts and one thousand voters, split 520-480 for Republicans. If the state legislature had previously packed-and-cracked its way to, say, eight Republican seats to two for Democrats, they might have drawn a map with a total of 200 Democrats and zero Republicans in those two blue seats, with the remaining eight districts each having 65 Republican voters and 35 Democratic voters. If they wanted to go to 9-1, they would have 58 Republicans and 42 Democrats in those nine districts.
But if they now want to go all in, they would have to create a new map in which every seat (or at least the median seat) is a 52-48 affair ex ante. And that is all based on recent voting patterns. What if Trump's disastrous policies and record-low approval among Americans turns off a bunch of those Republican voters? More to the point, it would not have to be "a bunch," with only three shifts per district enough to turn the state's caucus bright blue -- 30 votes out of 1000 would make it 10-0 for Democrats. Three percent.
Again, as Hungary's election a few weeks ago reminded us, and for that matter as the 2018 Democratic rout of Republicans during Trump's first term also showed -- House Democrats' overall vote margin then was 8.6 percent, and they picked up 41 seats -- even heavily gerrymandered districts are not as rock solid as we often believe them to be.
Moreover, it is not merely general voter dissatisfaction with everything Trump has done that should scare Republicans. As E.J. Dionne noted earlier this month, referring to Trump's drastic fall in the polls:
Especially damaging to Trump and his party was the sharp decline in support for the president among Latinos, with whom he made major inroads in the 2024 election. In The Economist/YouGov survey, his approval rating among Hispanics stood at 48% approve, 47% disapprove in March 2025; by March 2026, his ratings among Latinos had fallen to 31% approve, 60% disapprove.
Frequent readers of Dorf on Law probably know where I am going with this. In a series of columns this past November and December (here, here, and here), I pointed out that even many people I respect have bought into a narrative that says that "the economy" was the reason Trump won 49.8 percent of the popular vote in 2024 and retook the White House. My point in those columns was to show that the conventional wisdom does not explain the differences in voter demographics in that election. Specifically, the only group of voters that swung toward Trump in a meaningful way was Latinos, with Latino men being the big story -- a 20 percent swing from Biden in 2020 toward Trump in 2024, leading the Latino vote overall to swing by 14 points.
I am not saying that Dionne's overall argument is wrong, but I do want to point out that describing Latino voters as the group "with whom [Trump] made major inroads in the 2024 election" seriously flattens the analysis. The fact is that in 2026, there is no woman of color at the top of the Democrats' ticket, and as I noted in the first of my columns on this topic this past November, Fox News's Juan Williams wrote this after the 2024 election:
No, it wasn’t 'the Economy, stupid.' Speaking as a Black man born into a Spanish-speaking family, let me tell you what last week’s election was really about. It was about millions of men — many with my Latino immigrant background, some with my skin color — who don’t want any woman, especially a woman of color, in the White House.
As I wrote back then, I have no special expertise or personal experiences that would allow me to weigh in on Williams's thesis. I can say that I still have not seen anyone make any other case that actually fits the evidence. For that matter, no one seems even to have tried, because they all seem to want to talk about grocery prices or something "safe" rather than race and gender. But it is important at least to make the point that Dionne's "made major inroads" thing is pretty flimsy, because it describes as somehow enduring what might have been a truly one-off shift caused by anti-Harris voting.
And that, ladies and gentlemen, is in fact very good news. People like Dionne have been saying for months -- correctly -- that Trump's immigration policies should drive many demographic groups away from Republicans at the polls. Based on what I am describing here, that job could be even easier than it looks, because although people tend to stubbornly insist that they never made a bad decision, this is a very recent one-off experience.
This is not, in other words, anything close to the emergence in the 1980's of so-called Reagan Democrats, who were essentially Reaganites in waiting and became part of the reshuffling of American politics caused by the decline and ultimate defection of Dixiecrats, along with Ronald Reagan's aggressive use of racist tropes ("strapping young buck," "welfare queen," ad nauseam). That has truly been as close to a permanent partisan realignment as one could imagine in US politics. By contrast, the "Trump picked up some Latino voters" (while still losing among Latinos overall by eight points, by the way) could be a blip.
In the title of this column, I asked 'how much more dead" American democracy is as a result of the Court's shameful Callais decision. I suppose I can say that it is a bit deader, because that has to be true when the Court's Republicans hand potentially up to a dozen Democratic seats to Republicans. It gives Republicans the opportunity to keep their House majority with even fewer votes. Even so, not only could the additional gerrymanders that they are putting in place not pan out, but even existing safe-ish gerrymandered seats could end up being flipped after the Republican incumbents lose some fraction of their voters.
To be clear, there are many other ways in which the Court's anti-democracy rulings have been and will be disastrous for the country. This is the long con for Republicans finally reaching its payoff. And all of the ways in which their assaults on democracy give them control over levers of power that they will use to protect Trump (and themselves) from a drubbing in November are still at the ready.
Even so, because I almost never find silver linings, I am happy to have reason here to say that the House could still flip this Fall. At that point, we need to be prepared for the lawsuits, lockouts, and everything else that Trump will unleash to prevent himself from ever being held to account. But as a first step, winning the House is essential, and it is still not only possible but relatively easy to imagine. That is something, is it not?
- Neil H. Buchanan