This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.
At the behest of President Donald Trump, Texas Republicans are in the midst of making their state even more of a mockery of the concept of representative democracy than it already was. In an attempt to preserve the GOP’s narrow House majority in the 2026 midterms, lawmakers are tinkering with the boundaries of the state’s 38 congressional districts to create five more safe Republican seats, forcing several Democratic incumbents to seek re-election next year in districts that are suddenly, alarmingly red. Scrambling the map in this manner would ensure that in a state in which Trump earned 56 percent of the vote in 2024, Republicans would lock up 80 percent of the state’s representation in Congress for the rest of the decade.
In response, California Governor Gavin Newsom has asked lawmakers in his state to create a new map that would eke out five additional safe Democratic seats until 2030. Ambitious elected officials elsewhere are exploring similar retaliatory options, eager both to make the national electoral landscape friendlier for their parties and also to publicly take credit for doing so. In Texas, Republicans grew so desperate to maintain the quorum necessary to move forward that they had a handful of Democrats physically confined to the chamber overnight—generally speaking, not a sign that democracy is “in a good place.”
As is so often the case in American politics, you can draw a straight line between this frantic gerrymandering arms race and a mind-bendingly stupid decision from the U.S. Supreme Court. In a 5-4 ruling in Rucho v. Common Cause in 2019, the five Republican justices held that court challenges to partisan gerrymanders could not go forward in federal courts because such cases present a “political question”—basically, a question that judges (ostensibly) cannot answer using legal principles. Writing for the majority, Chief Justice John Roberts explained that the Constitution yields no workable standard for determining when a given gerrymander goes too far to be legal. Citing the line in Marbury v. Madison about the Court’s duty to “say what the law is”—always a good sign that a conservative justice is about to bullshit you—Roberts concluded that this time, the Court’s “duty is to say, ‘This is not law.’” (Do you see what he did there?)
It is of course true that the Supreme Court did not invent partisan gerrymandering, let alone force Texas Governor Greg Abbott to speed-run fascism by issuing civil arrest warrants for Democratic lawmakers who had the temerity to oppose his redistricting gambit. But the Court is responsible for its choice to tie its own hands six years ago, thus enabling these lawmakers to cement themselves in power without fear of interference from pesky, meddling federal courts.
In what is, in my view, still one of the most embarrassing paragraphs to appear in the pages of the United States Reporter, Roberts wraps in Rucho by noting that the holding constrains only federal courts; Congress, he says, would remain free to enact anti-gerrymandering legislation, as would lawmakers at the state level. The argument here is that voters who are dissatisfied with corruption in the political process don’t actually need John Roberts’s help, because they can always seek redress of their grievances via the aforementioned corrupt political process. This is roughly analogous to the fire department pulling up to a burning house, attaching the hoses to fire hydrants, and then politely informing the owner that it could rain any minute.
Roberts’s premise is, to put it generously, dubious: As Steve Vladeck points out, there are standards the Court could have decided to prescribe for use in partisan gerrymandering cases, if it were so inclined. The problem, of course, is that the conservative justices do not give a shit about partisan gerrymandering, because they understand basic facts about how politics in this country works: Nationwide, Republicans control 59 of 99 state legislative chambers, and hold both the legislature and the governorship in 24 states, compared to just 15 for Democrats. In other words, Republicans have more power over the line-drawing process in more places than their Democratic counterparts, who are always scrambling to catch up.
As Newsom has demonstrated, Democrats are as capable as Republicans of drawing maps that ruthlessly squeeze their opponents out of power. But the bet Roberts made in Rucho is that, on balance, the existence of unchecked partisan gerrymandering is better for his fellow Republicans than the absence of unchecked partisan gerrymandering. Appealing to the supposed difficulties of crafting “politically neutral” standards for solving problems is a time-honored maneuver among judges seeking to wash their hands of problems they do not want to solve. At one point, Roberts carefully notes that the justices in the majority do not “condone” partisan gerrymandering, but if they did, I am not sure how they would have decided the case any differently.
What is happening in Texas and California and elsewhere right now demonstrates just how vapid and hollow the reasoning in Rucho always was. You do not have to have a law degree to understand that a Texas map that transforms a 56-42 advantage into a 79-21 blowout is not, in any meaningful sense, fair. You do not need to be a Supreme Court justice to understand that a California map that would turn Kamala Harris’s 58 percent vote share in 2024 into 94 percent of power in the House does not allow for equal participation in the political process.
But this is the price that Rucho is forcing millions of voters to pay: Roberts borrowed the language of judicial humility, warning of the potential dangers of cavalierly empowering federal courts to answer hypothetical questions that might be difficult. All he did is prevent federal courts from answering very real questions that are not.
