"Race and partisanship have closely tracked each other for decades. But the justices said that under their new standard..."

"... courts must disentangle the two and could step in only if race, not politics, was at play. Analysts who cheered as well as those who criticized the ruling agreed that the justices were signaling that from now on lawmakers — not the courts — should be in the driver’s seat of redistricting."

From "In Alabama Ruling, Supreme Court Signals Limited Role for Federal Courts in Redistricting Fights/In an emergency ruling on Tuesday night, the court’s conservative majority gave a first glimpse into congressional district battles under a weakened Voting Rights Act" (NYT).

"A Democratic House candidate in Texas who said she wanted to turn a local immigrant detention center into a facility to imprison and castrate 'American Zionists'..."

"... has Democrats scrambling to distance the party from her and accusing Republicans of behind-the-scenes interference in the race. The contest is happening in a congressional district that Texas lawmakers redrew last year to favor Republicans but that Democrats think can still be won as President Donald Trump’s approval rating plunges. The candidate, Maureen Galindo, finished first among four in the March Democratic primary and is competing in Tuesday’s runoff.... In an Instagram post on Thursday, she said that she 'never said I want Jews in internment camps' but did want to imprison 'billionaire American Zionists' for 'funding genocidal prison systems.'... On May 13, Galindo wrote on Instagram that if elected to Congress, she would write a bill to declare that Zionism is antisemitic, and she would convert an ICE detention center located in her district into a prison with a 'castration processing center' for 'American Zionists' and former ICE officers. She has said she is not antisemitic...."

From "Texas runoff roiled by shadowy spending and a call to imprison 'American Zionists'/Incendiary comments by Maureen Galindo, a Democratic House candidate in Texas, prompted condemnation from Democrats, who accused the GOP of propping her up" (WaPo).

"In its 4-to-3 opinion, the Virginia Supreme Court wrote that Democratic legislators had violated the state’s constitution with their move to enact a new map meant to give their party 10 out of the state’s 11 U.S. House seats..."

".... up from the six it currently controls. Virginia voters had approved a constitutional amendment to allow for the map in a referendum. The problem, the court’s majority suggested, was that the first vote on the amendment in the General Assembly, which would authorize Democrats to redraw the map, occurred days before last fall’s legislative elections — meaning that some Virginians who cast their ballots early did so without knowing how their state lawmakers would vote on the new map. That, the justices wrote, violated the process laid out in the State Constitution. 'This constitutional violation incurably taints the resulting referendum vote and nullifies its legal efficacy,' the majority wrote...."

I'm reading "In Huge Blow to Democrats, Virginia Court Strikes Down House Map/The decision is a major victory for Republicans, wiping away a measure approved by voters to allow Democrats to gain as many as four House seats in the midterms" (NYT).

"The justices, split along ideological lines, ruled that the voting map was an unconstitutional racial gerrymander."

"In her dissent, Justice Elena Kagan accused the court’s conservative majority of gutting the Voting Rights Act."

From "Live Updates: Supreme Court Strikes Down Louisiana Map in Voting Rights Case" (NYT).

Although the justices struck down Louisiana’s map, the court’s conservative majority upheld the constitutionality of the Voting Rights Act itself. Voting rights groups had feared that the court might use the case to gut the remaining provisions of the landmark civil rights law.

AND: Here's the opinion: Louisiana v. Callais. It's 6-3, in the usual way, and Justice Alito writes for the majority.

"The Supreme Court... cleared the way for California to use a new congressional map intended to give Democrats five additional seats in the U.S. House of Representatives."

"In a one-sentence order, the justices turned down a request from a group of California Republicans that would have required the state to continue to use the map in place for the last several federal elections in the state while their challenge to the map moves forward. There were no public dissents from the court’s ruling."

SCOTUSblog reports.

"The court’s order came exactly two months after the justices, over a dissent by the court’s three Democratic appointees, granted a request from Texas to allow it to use a new map intended to allow Republicans to pick up five additional House seats in that state.... The challengers [in the California case] argued that the state’s goal all along had been 'offsetting a perceived racial gerrymander in Texas.'... The state countered... that the new map was not racially motivated. More broadly, it contended, the challengers were 'asking the Court to treat California’s map differently from how it treated Texas’s map, thereby allowing a Republican-led State to engage in partisan gerrymandering while forbidding a Democratic-led State from responding in kind.'"

So both states — and all states — can politically gerrymander to their heart's content. The Court isn't going to look too closely at whether something racial is really going on.

"The court’s brief, five-paragraph order indicated that 'Texas is likely to succeed on the merits of its claim that the District Court committed at least two serious errors.'"

"Moreover, it added, the lower court 'improperly inserted itself into an active primary campaign, causing much confusion and upsetting the delicate federal-state balance in elections.'"

From "Supreme Court allows Texas to use redistricting map challenged as racially discriminatory" (Scotusblog).

Here's the opinion. There's a long dissent by Kagan, joined by Sotomayor and Jackson, arguing for deference to the decision of the district court. Alito writes a concurring opinion, joined by Thomas and Gorsuch:

"From the start, everyone recognized that the purpose of Texas’s redistricting effort was Republican political advantage."

"The district court erred by inferring bad faith and racial intent because the Texas Legislature’s map did not (through some hypothetical means) transform the only Democratic district in Austin — an exceptionally Democratic city — into a Republican stronghold."

Wrote Texas Solicitor General William Peterson, quoted in "Alito lets Texas reinstate gerrymandered House map that could give GOP 5 more seats/Alito’s move allowing Texas officials to continue to prepare for primary elections under the new map came just after the state asked the Supreme Court for an urgent ruling" (Politico).

This is one of the "certain topics" I was talking about yesterday in "I feel as though unseen readers are leaning on me to write about certain topics that I see out there." Today is a new day, with Alito's stay of the lower court's order. But if you want to engage with the very lengthy and emotional lower court opinions, I recommend the discussion on the podcast "Advisory Opinions," here. Excerpt: 

"I hate the idea of the Republicans redrawing the district lines in Texas, as much as I hate what the Californians are trying to do. But I’m thinking now about California..."

"...and about the people of California. I promised them that we are going to create a commission that would be independent of the politicians, and there will be an independent citizens commission drawing the lines. So I’m not going to go back on my promise. I’m going to fight for my promise."

Said Arnold Schwarzenegger, quoted in "Newsom’s Gerrymander of California Has a Formidable Foe: Schwarzenegger/The actor-turned-governor helped overhaul how California draws political maps. In an interview with The New York Times, he said he would fight to preserve that legacy" (NYT).

Now, Mr. Newsom is asking voters to set the independent commission’s work aside for the next three elections in favor of a map drawn to help elect more Democrats.... Exactly how Mr. Schwarzenegger plans to wage this battle is still taking shape. It started with him asking an aide to design the T-shirt, which he wore to the gym Friday morning and then donned as he rode his electric bike to breakfast. As Mr. Schwarzenegger sat down in a private dining room filled with potted plants, a waiter brought him a dish of walnuts and raisins, and poured him a glass of watermelon juice....

If Arnold Schwarzenegger is eating walnuts and raisins and drinking watermelon juice, that's already part of the battle. It's a referendum. The people will vote. All either man can do is to advise the people how to vote. Arnold Schwarzenegger being Arnold Schwarzenegger and eating walnuts and raisins and drinking watermelon juice... that's persuasive!

"What Greg Abbott and the Texas GOP can learn from Wisconsin in 2011/We won a similar fight using this two-pronged messaging campaign."

Writes former governor Scott Walker in The Washington Post — gift link.

"Keep reminding everyone that a lawmaker’s first responsibility is to vote. If Texas Democrats continuously refuse to show up to do that, they have abandoned their job. At the same time, talk about why Republicans are pushing their reforms. Communicate the need for the plan repeatedly to regain control of the narrative."

I was going to say you can practically hear the Wisconsin accent and maybe that works in Wisconsin, but Texans might be a little more rowdy and rebellious, but I see Walker asserts: "It worked in the Badger State. It will work in the Lone Star State, too." What kind of logic is that? 

"In truth, Republicans may have more cards to play in an all-out redistricting war in 2026 than Democrats do."

The NYT concedes in "California Democrats Look to Redraw House Map to Counter Texas G.O.P./As a Texas senator summoned the F.B.I. to round up Democrats, the redistricting war that began in Texas was spreading, with California aiming at five Republican House seats."

... House maps and redistricting laws in Democratic states present significant hurdles. Illinois, for instance, is already so skewed to Democrats that flipping even one of the three Republican seats left would be extremely difficult for mapmakers.

That's a funny use of the passive voice: "is already so skewed." In other words, Democrats have already done what they could to advantage themselves in Illinois. They've already used the practice they now want to condemn as nefarious.

Illinois governor JB Pritzker is quoted saying: "If they’re going to cheat, then all of us have to take a hard look at what the effect of that cheating is on democracy. That means we all have to stand up and do the right thing. So, as far as I’m concerned, everything is on the table."

"If they’re going to cheat..." — as if the Republicans started it. You've just accused your own party of cheating. What is the "right thing" — cancelling the other side's cheating? You are essentially crediting your adversaries with doing the "right thing."

Meanwhile, in California, Gavin Newsom is also talking about the "right thing":

Unlike in Texas, where politicians control the process, California’s congressional districts have been set by an independent commission that is not allowed to consider partisanship in drawing the lines. Mr. Newsom has proposed putting that system on hold for the next three elections to help Democrats counter the Republican plan in Texas. He wants the California plan to contain a provision saying that it goes into effect only if Texas approves new maps mid-decade.

“It’s triggered on the basis of what occurs or doesn’t occur in Texas,” Mr. Newsom told reporters on Monday. “I hope they do the right thing, and if they do the right thing, then there’ll be no cause for us to have to move forward.”'

But if they don't do "the right thing," then Newsom is ready to do the wrong thing. But can he? The system he is talking about putting on hold is a matter of state constitutional law. To amend it, he would be asking the people to vote on a ballot initiative to undo the reform they voted for in 2008 and 2010. 

Imagine the campaign against that reform, so recently touted as the right thing to do in California: We're doing it right, but if Texas is doing it wrong, we've got to seize the power to do it wrong like the way we did in the bad old days.

"[Governor Greg] Abbott could not remove [the quorum-avoidant Democratic] lawmakers on his own and would need the courts to go along with his plan..."

"... according to University of Notre Dame law professor Derek Muller. While Abbott and other Republicans could argue that the Democrats had abandoned their duties, those lawmakers would have a chance to make the case that they were representing their constituents by denying the majority the quorum it needs to operate, he added.... 'Even if you go to a court, you’re going to have to make a showing that I think it’s going be tough to make.' Samuel Issacharoff, a professor at New York University School of Law who has observed Texas redistricting battles for more than 30 years, said the governor’s authority to order legislators to be arrested or to remove them from office, 'is at best, unclear.'"

From "Texas House Republicans vote to issue civil arrest warrants for fleeing Democrats/The Texas state House reconvened Monday without dozens of Democrats who left the state to try to stop the GOP from moving ahead with enacting a new congressional map that would give them five more safe seats" (WaPo)(free-access link).

57 of the Texas Democrats have absconded to Chicago, Boston, or Albany. It takes 51 to deny the Republicans a quorum. When is interfering with democracy characterizable as a form of democracy? Whenever the constituents you were elected to represent oppose what they majority elected to the legislature is trying to do?

ADDED: “Schwarzenegger ready to fight Newsom on redistricting/The Republican who helped pass California’s independent line-drawing commission wants to defend his legacy” (Politico).

"Think of us as the 'Inglourious Basterds' of the House Democrats. We will do anything to win this."

"Trump has fundamentally changed the rules of political engagement in this country. If they attack, you attack back."

Said Rep. Jimmy Gomez (D-California), quoted in "Blue-state Democrats face hurdles countering Texas GOP’s new election map/Democratic leaders in California, Illinois and New York are exploring retaliatory measures to offset the creation of more safe red seats. Moving as swiftly as their GOP counterparts will be difficult" (WaPo)(free-access link).

I saw the movie "Inglourious Basterds," but I don't remember what the characters did other than that they felt justified in doing it because they were fighting the Nazis, so I sought out help from Grok —  How unscrupulous and awful were the Inglourious Basterds?

From Grok's answer:

Moments away — we'll be getting the last cases of this Supreme Court term.

The cases will be posted on the Court's website, here. And here's the live-blogging at SCOTUSblog.

Here's Grok's summary of the remaining cases — birthright citizenship, racial gerrymandering, the nondelegation doctrine, Obamacare, access to on-line porn, and parents opting their kids out of woke school lessons.

UPDATE 1: "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, are broader than necessary to provide complete relief to each plaintiff with standing to sue" — Trump v. CASA. This is the "birthright citizenship" case, but it did not address the issue "whether the Executive Order violates the Citizenship Clause or Nationality Act. Instead, the issue the Court decides is whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions." Decided 6-3 (in the usual 6-3 breakdown).

From Justice Barrett's opinion: "The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred in the wake of Ex parte Young, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found....Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle."

Addressing Justice Jackson's dissent, Barrett writes: "JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary. No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison, 1 Cranch 137 (1803) (concluding that James Madison had violated the law but holding that the Court lacked jurisdiction to issue a writ of mandamus ordering him to follow it). But see post, at 15 (JACKSON, J., dissenting) ('If courts do not have the authority to require the Executive to adhere to law universally, . . . compliance with law some-times becomes a matter of Executive prerogative'). Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law. JUSTICE JACKSON skips over that part. Because analyzing the governing statute involves boring 'legalese,' post, at 3, she seeks to answer 'a far more basic question of enormous practical significance: May a federal court in the United States of America order the Executive to follow the law?' Ibid. In other words, it is unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive. JUSTICE JACKSON would do well to heed her own admonition: '[E]veryone, from the President on down, is bound by law.' Ibid. That goes for judges too."

UPDATE 2: Kennedy v. Braidwood rejects the Appointments Clause challenge to the U. S. Preventive Services Task Force. The members of the task force are deemed "inferior officers," thus not needing appointment by the President and Senate confirmation. This one is 6-3 in an unusual way. Sotomayor, Kagan, and Jackson join the majority opinion written by Kavanaugh (and also joined by Roberts and Barrett). The dissenters are Thomas, Alito, and Gorsuch.

UPDATE 3: FCC v. Consumers' Research — "The universal-service contribution scheme does not violate the nondelegation doctrine." Another 6-3 the unusual way — with a dissent from Thomas, Alito, and Gorsuch.

UPDATE 4: Mahmoud v. Taylor, 6-3, the usual way. "Parents challenging the Board’s introduction of the 'LGBTQ+-inclusive' storybooks, along with its decision to withhold opt outs, are entitled to a preliminary injunction." Justice Alito writes for the majority:

The Board of Education of Montgomery County, Maryland (Board), has introduced a variety of “LGBTQ+-inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise. 

Today, we hold that the parents have shown that they are entitled to a preliminary injunction. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill. Wisconsin v. Yoder, 406 U. S. 205, 218 (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Based on these principles, we conclude that the parents are likely to succeed in their challenge to the Board’s policies....

I added the boldface. The school was so out front in its desire to reprogram children. They must have been pious believers... or at least people who felt called to pose as pious believers. 

UPDATE 5: Free Speech Coalition v. Paxton, 6-3, the usual way, upholding the Texas law that restricts access to on-line porn. How do you exclude minors without burdening access for everyone? Here, the state required age verification. "But adults have no First Amendment right to avoid age verification. Any burden on adults is therefore incidental to regulating activity not protected by the First Amendment. This makes intermediate scrutiny the appropriate standard under the Court’s precedents." And the law "advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." 

Kagan writes in dissent: "[I]f a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult. So a State cannot target that expression, as Texas has here, any more than is necessary to prevent it from reaching children."

UPDATE 6: The racial gerrymandering case — Louisiana v. Callais — will be reargued. Justice Thomas, alone, dissents: "These cases also warrant immediate resolution because, due to our Janus-like election-law jurisprudence, States do not know how to draw maps that 'survive both constitutional and VRA review.'"

"The Supreme Court appeared split along partisan lines Monday over the creation of a second Black-majority congressional district in Louisiana...."

Writes Justin Jouvenal, in "Supreme Court seems split on Louisiana voting map, majority-Black districtsSeveral conservative justices were skeptical that the Voting Rights Act’s attempts to redress past discrimination can coexist with the Equal Protection Clause" (WaPo).

The legal arguments in the case center on the extent to which states can consider race in drawing legislative maps, a power they were granted as part of the Voting Rights Act in an attempt to address discriminatory electoral practices.

I wouldn't have written "granted."

Such maps cannot, however, be explicit racial gerrymanders.

Whatever happened to implicit racism? 

Did anyone listen to the oral argument this morning in the racial gerrymandering case?

I listened to some of it, and now I'm reading "Supreme Court hears pivotal Louisiana election map case ahead of 2026 midterms/The Supreme Court decision could reshape Louisiana's election map and may redefine rules for gerrymandering nationwide ahead of the 2026 midterm elections" (Fox News).

This is a painful topic — I've taught it in conlaw many times — because of the conflict between the constitutional requirement of equal protection (which one might think frowns rather severely on race discrimination), and the statutory interpretation, which requires that states create majority minority districts. The Constitution ought to win, you might think, but what if you really want the statute to win?

Unfortunately, the linked article doesn't tell us anything about the oral argument. I'll try to update with a better article or material from the transcript.

"Writing for the majority, Justice Samuel A. Alito noted many predominantly Black precincts in Charleston were moved out of one district and into another."

"But 'because of the tight correlation between race and partisan preferences, this fact does little to show that race, not politics drove the legislature’s choice,' he wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Justice Elena Kagan, writing for the justices nominated by Democrats, said the majority got it 'seriously wrong'.... Kagan warned that the majority opinion sends a message to lawmakers and mapmakers to use race as a proxy to achieve partisan ends. 'And so this "odious" practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue,' she wrote. 'In the electoral sphere especially, where "ugly patterns of pervasive racial discrimination" have so long governed, we should demand better — of ourselves, of our political representatives, and most of all of this Court.'"

From "Supreme Court allows disputed South Carolina voting map/At issue was whether the map was an unconstitutional attempt to divvy voters up by race -- or was permitted partisan gerrymandering" (WaPo).

"[Democratic Governor Tony] Evers signed the bill despite pressure from powerful Democrats in the state to veto it."

"When the bill made its way through the legislature, Democratic lawmakers opposed it nearly uniformly, citing concerns... about possible future legal challenges to the legislative maps and general distrust of the Republican legislators who agreed to the law’s passage. 'If you believe that WI Republicans are planning to run on Gov. Evers’ maps in November, I have a bridge in Brooklyn to sell you,' wrote Democratic state senator LaTonya Johnson on the social media site X. But it’s not clear exactly what those legal challenges would look like. 'I am extremely skeptical of this idea that there is a good basis for challenging the law, really on any grounds,' said Quinn Yeargain, a legal scholar who focuses on state constitutional law. 'I’m as much of a partisan Democrat and progressive as anybody else is, but being intellectually honest about what’s going on here is also important.'... The maps were heralded by anti-gerrymandering activists in Wisconsin as a win...."

From "Wisconsin adopts new legislative maps, giving Democrats chance to win state/Governor’s signature marks end of long fight over legislative lines and greatly reduces the Republican bias baked into current maps" (The Guardian).

"In an angry dissent, Justice Annette Ziegler, one of three conservatives on the panel, denounced the liberal majority as 'robewearers'...."

From "Justices in Wisconsin Order New Legislative Maps/The ruling, coming just months after liberals gained a 4-to-3 majority on the State Supreme Court, could undo gerrymanders that have given Republicans lopsided control of the State Legislature" (NYT).

On the other side:

Justice Jill J. Karofsky, writing for the majority, said that Wisconsin’s current maps violate a requirement in the State Constitution “that Wisconsin’s state legislative districts must be composed of physically adjoining territory.”

“Given the language in the Constitution, the question before us is straightforward,” she wrote. “When legislative districts are composed of separate, detached parts, do they consist of ‘contiguous territory’? We conclude that they do not.”

I see that Democrats are exulting, but why would more compact, contiguous districts help Democrats? Their problem has been that Democratic voters are concentrated in urban areas. If the court's decision means what that Karofsky quote says, won't more Democrats end up packed into districts that already had a safe Democratic majority?

Our former governor, Scott Walker, said "This is not the win the left thinks it is." 

"Disentangling race and politics in a situation like this is very, very difficult.... [It would be] breaking new ground in our voting rights jurisprudence."

Said Chief Justice John Roberts.

Quoted in "Justices Poised to Restore Voting Map Ruled a Racial Gerrymander/The case concerned a constitutional puzzle: how to distinguish the roles of race and partisanship in drawing voting maps when Black voters overwhelmingly favor Democrats" (NYT)("The difference matters because the Supreme Court has said that only racial gerrymandering may be challenged in federal court under the Constitution").

The Wisconsin Capitol looms ominously in The New York Times today.

I'm seeing this Jamelle Bouie piece this morning:

 

The issue, as you may have guessed, is legislative districting, which strongly favors Republicans, and the current threat to impeach the new Wisconsin Supreme Court Justice, Janet Protasiewicz, who got elected after declaring that the districting in Wisconsin is "rigged."

Bouie writes: