Abolish the Electoral College so that candidates are elected based on majority rules, not the absurd system we have now where only certain states can hold sway over elections. And eliminate gerrymandering by using ONLY the Census taken every ten years to define the lines for House and state elections. Lock a bunch of unnamed statisticians (or whatever the best type of impartial people are for this work) in a secure secret location for a few weeks and have them come up with the national plan. Why won't people embrace this solution? Seems logical and fairly simple.
Yes and...also consider eliminating gerrymandering by eliminating districts. If your district is pencil thin and hundreds of miles in length, there's a good chance your "representative" is not someone connected with your local community anyway.
Where I live we had Gosar. A carpetbagger (and uninterested in representing even our State's interests).
Excellent discussion. It's notable that Nate Silver came out with a map of the state supreme courts this morning showing Virginia as the only state supreme court in the country that does not lean one way or the other politically.
It looks like the VA decision caught many flatfooted but it was widely known their decision was very possible, even likely. Legal pundits who I consider pretty middle of the road like Michael Smerconish, Elie Hoenig and Dan Abrams discussed the case more than once, and felt there was a strong chance it would be overturned.
It's pretty obvious both parties just want to win and the legal arguments are regarded mainly as impediments to be overcome.
VA Dems have a good chance of picking up 3 of the 4 seats the gerrymander would have given them and an outside chance of picking up the 4th in the current environment.
The five Republican seats are EVEN, R+3, R+6, R+12, R+22. Spanberger won by 15.
Dems would have been far smarter spending those millions of dollars flipping the seats than redrawing the maps. Yet another case of Trump trolling the Dems into hurting themselves.
As for the Republicans, the Florida and Texas redistricting could easily end up dummymanders. (I wouldn’t be surprised if the Florida Supreme Court struck their map down to save the Republican legislature from themselves.)
Gabe: How does this analysis apply to today's decision covering Alabama's districts. It appears that the Supreme Court previously found Alabama to have unlawfully intended to discriminated in the making of its Congressional district. Now the Supreme Court is affirming the right for Alabama to intentionally discriminate based upon race. Isn't that decision in the Alabama case in direct conflict with your analysis of the Louisiana case. Or , am I misunderstanding the facts and your prior reasoning?
Hi Max, great question. It’s a little bit more complicated than that. Basically, Alabama drew a House map in 2021, a district court said that it was discriminatory, and the Supreme Court agreed in Allen v. Milligan. Then, Alabama drew a new map in 2023, a district court said that it was discriminatory too, and the Supreme Court said it was going to hold off on making a decision until after Callais. Now, the court is sending the case back to the district court to be reconsidered in light of Callais. This isn’t particularly unusual and, in fact, was predictable based on the court holding off their AL decision until Callais -- since the two cases are so similar, it makes sense that the court would tell the district court “look at our ruling in Callais and decide whether this map still violates it.” From there, it’s certainly possible the district court will say the AL map is still unlawful under the new post-Callais framework: then, it will be fascinating to see whether SCOTUS agrees. That will set up one of many tests to see how far SCOTUS interprets its Callais holding to reach. In other words, we don’t yet know how the court will rule on the merits of the Alabama map or how they’ll apply Callais there, and the case is about a slightly different map than the map they previously considered in Allen v. Milligan.
The part about this that I do think raises questions is the court effectively allowing Alabama to use the 2023 map in the meantime. That they certainly didn’t have to do: they could have remanded the case to be reconsidered by the district court, but kept the district court injunction in place in the meantime. As is generally the case with orders that decide what will be the temporary status quo of cases while they move through the courts, the justices did not explain their reasoning in doing so, which (in my opinion) is an unfortunate part of these so-called “shadow docket” rulings that only make the court’s work more opaque.
This is why lawyers make a lot of money arguing these aspects of the law, which is capable of being interpreted in more than one light. Wonderful illustrated for both sides of the arguments, well done and an enjoyable read, thank You.
As you say, both sides on these issues are willing to flop from textualist to purposive depending upon which approach serves their goals. The result is that the judiciary has allowed itself to become entirely tainted by partisanship. It brings dishonor to the court.
It IS ironic that in Virginia, the majority opinion expresses concern for being scrupulous about voters being able to express their preferences, and the result is to reverse the outcome of the election that JUST TOOK PLACE.
And in various voting rights act cases, the Supreme Court is basically saying that gerrymandering for partisan politics is OK, and would always have been OK even back into the mid-60's. They are not saying that times have changed and we no longer need these protections, like they have said on DEI issues. They are saying that so long as blacks vote as a block for one party over the other, it's OK now and would always have been OK to fracture and dilute their votes. The great increase in the number of black legislators that did occur would not have occurred under their interpretation, and we will now see it reverse back to the way it was before all of the voting rights legislation. They are putting the genie back in the bottle.
There are two albatrosses that history will hang around John Roberts' neck: 1) cases that allow the "free expression" of partisan politics to roll back civil rights legislation and 2) Citizens United. #1 is the horse but #2 is the cart. It's assisting the GOP in their use of the banner of white supremacy to attract enough voters to facilitate the control of the political process by the new aristocracy of extreme wealth. THAT is what this court is enabling.
I wonder if Gabe could expound on the actual VRA ruling, as George alludes to above. Did they rule part of it unconstitutional, or are they just changing how it is interpreted? And if unconstitutional, could past elections actually be affected?
It’s a little complicated! The court did not say the VRA itself was unconstitutional, instead they said it had previously been interpreted it ways that were unconstitutional, and now they are reinterpreting it so that it will be enforced in accordance with the Constitution. So they didn’t strike the law down as unconstitutional, but they said it needed to be interpreted differently to avoid clashing with the Constitution. As for past elections, no past elections will be affected, but maps that were used in past elections can be redrawn so that the 2026 elections will be held under different lines. (That is, no member of Congress who was elected in 2024 could suddenly be booted out mid-term because of this ruling. But their 2026 district lines could look different than their 2024 lines.)
First of all the VRA had a lot more implications than voting rights I am going to leave a general comment for that The sources I read are Steve Vladeck, Joyce Vance White and Preet Bahara The first one is a constitutional scholar that teaches at Georgetown The latter two are former Federal Lead prosecutors I also follow Adam Klasfeld who is one of the best courtroom reporters
White and Bahara tend to be a tad left but I trust their interpretations based on their experience. Klasfeld and Vladeck stick to the facts and their interpretations
I appreciated Jamelle Bouie’s pieces on both of these cases, which while thinking about the case and interpretation, also put it in the context of the bigger picture of racial discrimination that the VRA was enacted to correct.
Women and minorities have seen their rights taken away under this current Supreme Court by judges that have exhibited proven unethical behavior, and then whined now nobody respects them. People have the right to feel frustrated and despondent about their rulings!Shame the hypocrisy of the judges too please! Not just the American public who are feeling alarmed and upset and use hyperbolic language in their response.
Thanks for sharing your thoughts, Andrea. I thought Bouie’s first piece was a well argued defense of the VRA. I think his second piece has several failings, including eliding the fact that it was Democrats (not the court) that asked for the ruling to be postponed until after the referendum. I was also concerned by his comments on social media suggesting that VA politicians should ignore the ruling. I have to wonder how he would respond if the roles were reversed. If a Republican-led state legislature rushed through a referendum in this fashion, I doubt that Bouie would be calling for the court ruling to be overturned. My guess is he would be saying the state had suppressed the voices of the 40% of voters who didn’t get to weigh in on the referendum in the legislative election, and he would be harshly condemning any GOP politician who considered ignoring a court ruling.
The Callais decision is indefensible. As documented elsewhere, they relied on junk science to justify their interpretation. This “both-sides”ism when one side is authoritarian nonsense is getting an unfollow from me.
Yeeeeeeah, I appreciate Gabe's effort to give defense to conservative reasoning on this case, but even his own article here makes textualism in this case basically undefendable. "Sure, this case has tons of precedent and history behind it, but what does the word "opportunity" really mean?!" Nope. The conservatives got this one wrong.
Hi Ashley, thanks for writing. My point in the piece is that there are different methods of legal interpretation. I don’t think it’s right to look at an argument that de-emphasizes precedent and history and instead focuses on parsing the meaning of the word “opportunity” as indefensible. Instead, you can look at that and say “Oh, that’s just a textualist properly applying textualism.” It’s perfectly fine if purposivist reasoning seems like a better method to you, but I think it’s important to understand the other methods out there, and how they work. Even if you think their method isn’t the right one, as long as someone is applying their method correctly, you can see it as defensible within the bounds of how their method aims to look at law. And if purposivist reasoning does align more with how you think judges should rule, I’m curious what your thoughts are on the proper verdict in the Virginia case.
I think that the "right" method of legal interpretation is generally a moderate approach - what does the text mean AND how does it get applied in the real world? What is the intent AND the impact? To ignore one in favor of the other is to apply a logic that doesn't stand up to real world requirements for justice. I think it's completely valid that the Virginia constitution has a requirement of a general election in between amendments AND ALSO we should examine the impact of this particular amendment in this case. If there is evidence that a proper application of the "general election" rule would have had a significant impact on the results, then it is appropriate for the court to interfere. Otherwise, it seems like meddling for meddling's sake - not an attempt at real-world justice.
I think that moderate approach makes a lot of sense -- my only issue with it is that it’s hard to apply. How would we know whether proper application of the "general election" rule would have had a significant impact on the results or not? Not sure we want judges making guesses about election prognostications. And then suddenly you have judges sometimes applying a rule, and sometimes not, which seems like a dangerous path to go down when we’re talking about amending a Constitution. But I do agree that there’s wisdom in both approaches and it can make sense to strike a middle ground. I, for one, am glad I’m not a judge and am spared having to make these difficult decisions!
Right, well, isn't that where "judgment" comes in? If we want to just apply a hard and fast rule, AI can do that. You're right that it's not an easy position to be in. But the most valuable judges are those that can apply good judgment - not just consistently, but with a measure of morality, humility, intelligence, and recognition of societal needs (or in short, with humanity in mind). I don't want a judge who uses a dependable rule or method - I want one that uses judgment.
I think too often judges use their "rules" or "methods" as a defense of their judgments rather than just standing behind the ruling on its own merits.
Fair! My piece obviously focused on interpretative methods, but obviously there are also different views on the role of a judge itself that come into play here.
Gabe I appreciate your writing and effort to define and evaluate contextualism vs purposivist But both have some drawbacks, especially textualism
I don't have a problem with the concept but it gets taken to an extreme My prime example is Hobby Lobby They applied a personal right to a corporate right The owners of Hobby Lobby are Christian Literalists How interesting? It always looked to me that they were trying to apply their views to corporate policy on paying for abortions
I have no problems with their views and I am opposed to abortion But if you are going to allow them to apply their views to corporate policy that is federally regulated then the corporate structure should be removed
I also question the "strict" interpretation How do they know the founders' views. Heave they read the Federalist Papers and other papers that reflect their views I would say no in at least some cases A glaring one is their stand on religion Jefferson and others were very purposeful in their opinions
I’m curious about your footnote 5. If states are responsible for elections, how can the federal government take control over state voting districts? I can see how it might require these districts to be drawn in a manner that does not violate the constitution but I don’t see how it could actually draw the maps, a vote by the Senate notwithstanding.
This is untested, so it’s unknown whether this is something Congress would ultimately be able to do. The argument in favor would be rooted in the Elections Clause of the Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” That’s a pretty broad grant of power to Congress to override state election laws. The argument against would involve the anticommandeering doctrine, which limits when the federal government can override state sovereignty — though the court has generally deferred to Congress on commandeering disputes over election law: https://harvardlawreview.org/print/vol-133/h-r-1-116th-cong-2019/?utm_source=chatgpt.com
Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence
Hi Gabe, I'm a bit behind on my emails again... I hope you see this. I appreciate all the factual, legal analysis. I would like to make a case that it's partially missing the forest for the trees. While Newsom is wrong to use words like "rigged", I think the contrast in his tweet points to a deeper truth.
1) Almost everyone agrees that gerrymandering is bad and makes our political process worse.
2) Several blue states have added barriers to gerrymandering in attempts at improving the political process.
3) Now, several red states have engaged in an unprecedented round of mid-cycle redistricting, entirely at the behest of the President, for no other reason than to attempt to protect a narrow majority. These states had not added any barriers to gerrymandering and thus have been able to do so.
4) Now those blue states are at a disadvantage. So even if in each case, the outcome of each process is legitimate and sound -- not rigged, not stolen -- the processes themselves are no longer even. A situation where one side tries to fight clean and one side fights dirty, leading to either a structural imbalance for the dirty side, or forcing the other side to fight dirty as well to undo the imbalance, is not good for any of us!
I would love to know your thoughts on this! I'm guessing one counterargument would be that it's an oversimplification to say that one side is fighting clean and one dirty here -- I know there are egregious gerrymanders that have happened on both sides, even before this mid-cycle -- but I haven't done or read an analysis about the overall balance across all 50 states. It seems to me that one measure of potential imbalance, imperfect but a rough ballpark, would be how the total popular vote proportion across all congressional districts compares to the proportion of seats won by each party, and how that has varied over time, but I haven't had time to do that either. Thanks again for all your work.
You can rationalize/justify darn near anything. The bible was used to justify slavery, the nazI (In their minds) justified the holocaust, etc. The intent of the law is absolutely clear as is the intent of the decision. Roberts convoluted twisted claim that SCOTUS Is apolitical is laughable. As the old saying goes, if it looks like a duck, walks like a duck, quacks like a duck it’s probably a duck.
Gabe, I'm angry! I'm tired of people assigning good will jurists and a court system, particularly SCOTUS, that is not interested in anything but protecting bigoted minority rule by old white men, men like me (well let's hope just the old part). Gabe, this whole piece to me is nothing more than intellectual masturbation; I don't believe for a minute these judges decide based on contextualism or purposivist reasoning. They decided first based on their political views and which groups they're trying to please and then use these methods of legal interpretation to rationalize their obviously biased positions to the public. You definitely don't want to piss off the billionaire that's paying for your next luxury vacation. This court has time and again said 50 plus years of precedent was wrong and that they know better than all the jurists who came before them. Do you believe that's true, that they are better able to interpret the Constitution than those that came before them? Have the words somehow developed new meaning? Any court that ruled that the president is above the law has lost my trust and absolutely needs to go. I'm 74 and have over those many years heard court decisions I didn't necessarily agree with but I never felt, until now, that they were completely politically motivated. If it were up to me I'd reform them out of existence, the country shouldn't be held hostage by six individuals (yes I know there are nine on the court).
I don't know enough of the details of the Virginia ruling to come to an informed decision as to whether I believe it was fairly reached. However, I have to agree with Barbara Fox's comment:
"Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence."
I don't believe in coincidences either.
Don't explain to me the complexities of the case and how it affected the ruling because I don't think it mattered, that's not what it was about. This was about securing minority rule for conservative white people, plain and simple. It had nothing to do with the outcome because the outcome was predetermined. Explain to me and provide suggestions on how we try and save our republic from those who obviously wish to flush it down the toilet. That would be helpful and worth continuing to support.
Hi John, thanks for writing. I’m not trying to say you can’t be angry -- my goal with the piece was just to urge people not to be angry without first reading up on the facts. Then, if you’re still angry, that’s certainly your right. But don’t let anyone hijack your emotions before you’ve had the opportunity to get informed. In other words, don’t be angry simply about the partisan consequences -- try to look into the law and if you feel it was wrongly applied, feel angry about that. (Or, perhaps, feel disappointed but really only angry if you feel it was egregiously wrongly applied.)
You write that you don’t know enough of the details of the Virginia ruling to have an informed decision. But I would encourage you to try to inform yourself on some of the details! The ruling is linked in the newsletter -- it isn’t too long or even written in too much legalese. I tried to explain it hopefully accessibly in the newsletter, but there are also other explanations available if you thought mine was inaccessible or unfairly presented. I think doing that sort of research will be a much more productive way to understanding legal outcomes than looking at the race of the judges, especially seeing as this wasn’t a case about race.
As for the Supreme Court, I don’t think it’s accurate to say the court’s rulings are purely political: why, then, would the court have allowed California Democrats to gerrymander their maps, for example? I’m not saying politics plays no role, but I do think it’s more nuanced than that, and understanding the judicial philosophies helps fill in some of the gaps. I also don’t think it’s accurate to frame the current court as especially hostile to precedent. A study in 2024 found that the Roberts Court had overturned an average of 1.6 precedents per term, fewer than the Warren (3.1), Burger (3.4), or Rehnquist Courts (2.4) that preceded it: https://www.nytimes.com/2024/01/29/us/supreme-court-precedent-chevron.html. In fairness, I don’t think counting overturned precedents is a perfect metric. Callais, for example, modified a precedent without overturning it. However, I do think these stats point to the fact that all iterations of the Supreme Court overturn precedents at times and the Roberts Court has not been unusually likely to do so.
I appreciate you writing -- no one, certainly not me, is going to get every story right 100% of the time, and I appreciate you sharing your thoughts and feedback.
Thanks to a piece written about this last year, I learned about why the SC case may end the way it has and I agree that the maps were drawn unconstitutionally—both times!
Democratic politicians aren't wrong to cast the system as rigged, they're just looking at the system with a wider lens. It's patently unfair that Republicans will jam through a bunch of gerrymanders in the South following the Callais decision, but that Democrats were disarmed by the courts in Virginia when they tried to fight back against the GOP-initiated mid-decade redistricting in Texas. We should have gerrymandering for none, or gerrymandering for all. The nuances of the VA Constitution and the Voting Rights Act don't matter when you look at this way.
Abolish the Electoral College so that candidates are elected based on majority rules, not the absurd system we have now where only certain states can hold sway over elections. And eliminate gerrymandering by using ONLY the Census taken every ten years to define the lines for House and state elections. Lock a bunch of unnamed statisticians (or whatever the best type of impartial people are for this work) in a secure secret location for a few weeks and have them come up with the national plan. Why won't people embrace this solution? Seems logical and fairly simple.
Yes and...also consider eliminating gerrymandering by eliminating districts. If your district is pencil thin and hundreds of miles in length, there's a good chance your "representative" is not someone connected with your local community anyway.
Where I live we had Gosar. A carpetbagger (and uninterested in representing even our State's interests).
Excellent discussion. It's notable that Nate Silver came out with a map of the state supreme courts this morning showing Virginia as the only state supreme court in the country that does not lean one way or the other politically.
It looks like the VA decision caught many flatfooted but it was widely known their decision was very possible, even likely. Legal pundits who I consider pretty middle of the road like Michael Smerconish, Elie Hoenig and Dan Abrams discussed the case more than once, and felt there was a strong chance it would be overturned.
It's pretty obvious both parties just want to win and the legal arguments are regarded mainly as impediments to be overcome.
VA Dems have a good chance of picking up 3 of the 4 seats the gerrymander would have given them and an outside chance of picking up the 4th in the current environment.
The five Republican seats are EVEN, R+3, R+6, R+12, R+22. Spanberger won by 15.
Dems would have been far smarter spending those millions of dollars flipping the seats than redrawing the maps. Yet another case of Trump trolling the Dems into hurting themselves.
As for the Republicans, the Florida and Texas redistricting could easily end up dummymanders. (I wouldn’t be surprised if the Florida Supreme Court struck their map down to save the Republican legislature from themselves.)
Gabe: How does this analysis apply to today's decision covering Alabama's districts. It appears that the Supreme Court previously found Alabama to have unlawfully intended to discriminated in the making of its Congressional district. Now the Supreme Court is affirming the right for Alabama to intentionally discriminate based upon race. Isn't that decision in the Alabama case in direct conflict with your analysis of the Louisiana case. Or , am I misunderstanding the facts and your prior reasoning?
Hi Max, great question. It’s a little bit more complicated than that. Basically, Alabama drew a House map in 2021, a district court said that it was discriminatory, and the Supreme Court agreed in Allen v. Milligan. Then, Alabama drew a new map in 2023, a district court said that it was discriminatory too, and the Supreme Court said it was going to hold off on making a decision until after Callais. Now, the court is sending the case back to the district court to be reconsidered in light of Callais. This isn’t particularly unusual and, in fact, was predictable based on the court holding off their AL decision until Callais -- since the two cases are so similar, it makes sense that the court would tell the district court “look at our ruling in Callais and decide whether this map still violates it.” From there, it’s certainly possible the district court will say the AL map is still unlawful under the new post-Callais framework: then, it will be fascinating to see whether SCOTUS agrees. That will set up one of many tests to see how far SCOTUS interprets its Callais holding to reach. In other words, we don’t yet know how the court will rule on the merits of the Alabama map or how they’ll apply Callais there, and the case is about a slightly different map than the map they previously considered in Allen v. Milligan.
The part about this that I do think raises questions is the court effectively allowing Alabama to use the 2023 map in the meantime. That they certainly didn’t have to do: they could have remanded the case to be reconsidered by the district court, but kept the district court injunction in place in the meantime. As is generally the case with orders that decide what will be the temporary status quo of cases while they move through the courts, the justices did not explain their reasoning in doing so, which (in my opinion) is an unfortunate part of these so-called “shadow docket” rulings that only make the court’s work more opaque.
Thank you.
This is why lawyers make a lot of money arguing these aspects of the law, which is capable of being interpreted in more than one light. Wonderful illustrated for both sides of the arguments, well done and an enjoyable read, thank You.
Amazing article Gabe! Thank for the real and honest blow-by-blow of those decisions and giving us our own homework to figure things out for ourselves!
Thank you, Gabe!! Very informative and I believe necessary.
As you say, both sides on these issues are willing to flop from textualist to purposive depending upon which approach serves their goals. The result is that the judiciary has allowed itself to become entirely tainted by partisanship. It brings dishonor to the court.
It IS ironic that in Virginia, the majority opinion expresses concern for being scrupulous about voters being able to express their preferences, and the result is to reverse the outcome of the election that JUST TOOK PLACE.
And in various voting rights act cases, the Supreme Court is basically saying that gerrymandering for partisan politics is OK, and would always have been OK even back into the mid-60's. They are not saying that times have changed and we no longer need these protections, like they have said on DEI issues. They are saying that so long as blacks vote as a block for one party over the other, it's OK now and would always have been OK to fracture and dilute their votes. The great increase in the number of black legislators that did occur would not have occurred under their interpretation, and we will now see it reverse back to the way it was before all of the voting rights legislation. They are putting the genie back in the bottle.
There are two albatrosses that history will hang around John Roberts' neck: 1) cases that allow the "free expression" of partisan politics to roll back civil rights legislation and 2) Citizens United. #1 is the horse but #2 is the cart. It's assisting the GOP in their use of the banner of white supremacy to attract enough voters to facilitate the control of the political process by the new aristocracy of extreme wealth. THAT is what this court is enabling.
I wonder if Gabe could expound on the actual VRA ruling, as George alludes to above. Did they rule part of it unconstitutional, or are they just changing how it is interpreted? And if unconstitutional, could past elections actually be affected?
It’s a little complicated! The court did not say the VRA itself was unconstitutional, instead they said it had previously been interpreted it ways that were unconstitutional, and now they are reinterpreting it so that it will be enforced in accordance with the Constitution. So they didn’t strike the law down as unconstitutional, but they said it needed to be interpreted differently to avoid clashing with the Constitution. As for past elections, no past elections will be affected, but maps that were used in past elections can be redrawn so that the 2026 elections will be held under different lines. (That is, no member of Congress who was elected in 2024 could suddenly be booted out mid-term because of this ruling. But their 2026 district lines could look different than their 2024 lines.)
First of all the VRA had a lot more implications than voting rights I am going to leave a general comment for that The sources I read are Steve Vladeck, Joyce Vance White and Preet Bahara The first one is a constitutional scholar that teaches at Georgetown The latter two are former Federal Lead prosecutors I also follow Adam Klasfeld who is one of the best courtroom reporters
White and Bahara tend to be a tad left but I trust their interpretations based on their experience. Klasfeld and Vladeck stick to the facts and their interpretations
Another good one is Andrew Weissman
I appreciated Jamelle Bouie’s pieces on both of these cases, which while thinking about the case and interpretation, also put it in the context of the bigger picture of racial discrimination that the VRA was enacted to correct.
https://www.nytimes.com/2026/05/06/opinion/callais-voting-rights-act-discrimination.html?smid=nytcore-ios-share
https://www.nytimes.com/2026/05/09/opinion/virginia-supreme-court-ruling.html?smid=nytcore-ios-share
Women and minorities have seen their rights taken away under this current Supreme Court by judges that have exhibited proven unethical behavior, and then whined now nobody respects them. People have the right to feel frustrated and despondent about their rulings!Shame the hypocrisy of the judges too please! Not just the American public who are feeling alarmed and upset and use hyperbolic language in their response.
Thanks for sharing your thoughts, Andrea. I thought Bouie’s first piece was a well argued defense of the VRA. I think his second piece has several failings, including eliding the fact that it was Democrats (not the court) that asked for the ruling to be postponed until after the referendum. I was also concerned by his comments on social media suggesting that VA politicians should ignore the ruling. I have to wonder how he would respond if the roles were reversed. If a Republican-led state legislature rushed through a referendum in this fashion, I doubt that Bouie would be calling for the court ruling to be overturned. My guess is he would be saying the state had suppressed the voices of the 40% of voters who didn’t get to weigh in on the referendum in the legislative election, and he would be harshly condemning any GOP politician who considered ignoring a court ruling.
The Callais decision is indefensible. As documented elsewhere, they relied on junk science to justify their interpretation. This “both-sides”ism when one side is authoritarian nonsense is getting an unfollow from me.
Yeeeeeeah, I appreciate Gabe's effort to give defense to conservative reasoning on this case, but even his own article here makes textualism in this case basically undefendable. "Sure, this case has tons of precedent and history behind it, but what does the word "opportunity" really mean?!" Nope. The conservatives got this one wrong.
Hi Ashley, thanks for writing. My point in the piece is that there are different methods of legal interpretation. I don’t think it’s right to look at an argument that de-emphasizes precedent and history and instead focuses on parsing the meaning of the word “opportunity” as indefensible. Instead, you can look at that and say “Oh, that’s just a textualist properly applying textualism.” It’s perfectly fine if purposivist reasoning seems like a better method to you, but I think it’s important to understand the other methods out there, and how they work. Even if you think their method isn’t the right one, as long as someone is applying their method correctly, you can see it as defensible within the bounds of how their method aims to look at law. And if purposivist reasoning does align more with how you think judges should rule, I’m curious what your thoughts are on the proper verdict in the Virginia case.
I think that the "right" method of legal interpretation is generally a moderate approach - what does the text mean AND how does it get applied in the real world? What is the intent AND the impact? To ignore one in favor of the other is to apply a logic that doesn't stand up to real world requirements for justice. I think it's completely valid that the Virginia constitution has a requirement of a general election in between amendments AND ALSO we should examine the impact of this particular amendment in this case. If there is evidence that a proper application of the "general election" rule would have had a significant impact on the results, then it is appropriate for the court to interfere. Otherwise, it seems like meddling for meddling's sake - not an attempt at real-world justice.
I think that moderate approach makes a lot of sense -- my only issue with it is that it’s hard to apply. How would we know whether proper application of the "general election" rule would have had a significant impact on the results or not? Not sure we want judges making guesses about election prognostications. And then suddenly you have judges sometimes applying a rule, and sometimes not, which seems like a dangerous path to go down when we’re talking about amending a Constitution. But I do agree that there’s wisdom in both approaches and it can make sense to strike a middle ground. I, for one, am glad I’m not a judge and am spared having to make these difficult decisions!
Right, well, isn't that where "judgment" comes in? If we want to just apply a hard and fast rule, AI can do that. You're right that it's not an easy position to be in. But the most valuable judges are those that can apply good judgment - not just consistently, but with a measure of morality, humility, intelligence, and recognition of societal needs (or in short, with humanity in mind). I don't want a judge who uses a dependable rule or method - I want one that uses judgment.
I think too often judges use their "rules" or "methods" as a defense of their judgments rather than just standing behind the ruling on its own merits.
Fair! My piece obviously focused on interpretative methods, but obviously there are also different views on the role of a judge itself that come into play here.
Gabe I appreciate your writing and effort to define and evaluate contextualism vs purposivist But both have some drawbacks, especially textualism
I don't have a problem with the concept but it gets taken to an extreme My prime example is Hobby Lobby They applied a personal right to a corporate right The owners of Hobby Lobby are Christian Literalists How interesting? It always looked to me that they were trying to apply their views to corporate policy on paying for abortions
I have no problems with their views and I am opposed to abortion But if you are going to allow them to apply their views to corporate policy that is federally regulated then the corporate structure should be removed
I also question the "strict" interpretation How do they know the founders' views. Heave they read the Federalist Papers and other papers that reflect their views I would say no in at least some cases A glaring one is their stand on religion Jefferson and others were very purposeful in their opinions
I’m curious about your footnote 5. If states are responsible for elections, how can the federal government take control over state voting districts? I can see how it might require these districts to be drawn in a manner that does not violate the constitution but I don’t see how it could actually draw the maps, a vote by the Senate notwithstanding.
This is untested, so it’s unknown whether this is something Congress would ultimately be able to do. The argument in favor would be rooted in the Elections Clause of the Constitution, which says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” That’s a pretty broad grant of power to Congress to override state election laws. The argument against would involve the anticommandeering doctrine, which limits when the federal government can override state sovereignty — though the court has generally deferred to Congress on commandeering disputes over election law: https://harvardlawreview.org/print/vol-133/h-r-1-116th-cong-2019/?utm_source=chatgpt.com
Thanks for this clarification. I guess it is possible then. But it certainly would create quite a hullabaloo.
Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence
Hi Gabe, I'm a bit behind on my emails again... I hope you see this. I appreciate all the factual, legal analysis. I would like to make a case that it's partially missing the forest for the trees. While Newsom is wrong to use words like "rigged", I think the contrast in his tweet points to a deeper truth.
1) Almost everyone agrees that gerrymandering is bad and makes our political process worse.
2) Several blue states have added barriers to gerrymandering in attempts at improving the political process.
3) Now, several red states have engaged in an unprecedented round of mid-cycle redistricting, entirely at the behest of the President, for no other reason than to attempt to protect a narrow majority. These states had not added any barriers to gerrymandering and thus have been able to do so.
4) Now those blue states are at a disadvantage. So even if in each case, the outcome of each process is legitimate and sound -- not rigged, not stolen -- the processes themselves are no longer even. A situation where one side tries to fight clean and one side fights dirty, leading to either a structural imbalance for the dirty side, or forcing the other side to fight dirty as well to undo the imbalance, is not good for any of us!
I would love to know your thoughts on this! I'm guessing one counterargument would be that it's an oversimplification to say that one side is fighting clean and one dirty here -- I know there are egregious gerrymanders that have happened on both sides, even before this mid-cycle -- but I haven't done or read an analysis about the overall balance across all 50 states. It seems to me that one measure of potential imbalance, imperfect but a rough ballpark, would be how the total popular vote proportion across all congressional districts compares to the proportion of seats won by each party, and how that has varied over time, but I haven't had time to do that either. Thanks again for all your work.
Good points. Would have also liked to hear his response.
You can rationalize/justify darn near anything. The bible was used to justify slavery, the nazI (In their minds) justified the holocaust, etc. The intent of the law is absolutely clear as is the intent of the decision. Roberts convoluted twisted claim that SCOTUS Is apolitical is laughable. As the old saying goes, if it looks like a duck, walks like a duck, quacks like a duck it’s probably a duck.
Gabe, I'm angry! I'm tired of people assigning good will jurists and a court system, particularly SCOTUS, that is not interested in anything but protecting bigoted minority rule by old white men, men like me (well let's hope just the old part). Gabe, this whole piece to me is nothing more than intellectual masturbation; I don't believe for a minute these judges decide based on contextualism or purposivist reasoning. They decided first based on their political views and which groups they're trying to please and then use these methods of legal interpretation to rationalize their obviously biased positions to the public. You definitely don't want to piss off the billionaire that's paying for your next luxury vacation. This court has time and again said 50 plus years of precedent was wrong and that they know better than all the jurists who came before them. Do you believe that's true, that they are better able to interpret the Constitution than those that came before them? Have the words somehow developed new meaning? Any court that ruled that the president is above the law has lost my trust and absolutely needs to go. I'm 74 and have over those many years heard court decisions I didn't necessarily agree with but I never felt, until now, that they were completely politically motivated. If it were up to me I'd reform them out of existence, the country shouldn't be held hostage by six individuals (yes I know there are nine on the court).
I don't know enough of the details of the Virginia ruling to come to an informed decision as to whether I believe it was fairly reached. However, I have to agree with Barbara Fox's comment:
"Three of the 4 justices that voted to strike down the referendum in Virginia were elected by the general assembly when BOTH the Senate and the House were controlled by Republicans and all four were white. Two of the 3 judges that wanted to uphold the voting outcome were black. I don’t believe in coincidence."
I don't believe in coincidences either.
Don't explain to me the complexities of the case and how it affected the ruling because I don't think it mattered, that's not what it was about. This was about securing minority rule for conservative white people, plain and simple. It had nothing to do with the outcome because the outcome was predetermined. Explain to me and provide suggestions on how we try and save our republic from those who obviously wish to flush it down the toilet. That would be helpful and worth continuing to support.
Hi John, thanks for writing. I’m not trying to say you can’t be angry -- my goal with the piece was just to urge people not to be angry without first reading up on the facts. Then, if you’re still angry, that’s certainly your right. But don’t let anyone hijack your emotions before you’ve had the opportunity to get informed. In other words, don’t be angry simply about the partisan consequences -- try to look into the law and if you feel it was wrongly applied, feel angry about that. (Or, perhaps, feel disappointed but really only angry if you feel it was egregiously wrongly applied.)
You write that you don’t know enough of the details of the Virginia ruling to have an informed decision. But I would encourage you to try to inform yourself on some of the details! The ruling is linked in the newsletter -- it isn’t too long or even written in too much legalese. I tried to explain it hopefully accessibly in the newsletter, but there are also other explanations available if you thought mine was inaccessible or unfairly presented. I think doing that sort of research will be a much more productive way to understanding legal outcomes than looking at the race of the judges, especially seeing as this wasn’t a case about race.
As for the Supreme Court, I don’t think it’s accurate to say the court’s rulings are purely political: why, then, would the court have allowed California Democrats to gerrymander their maps, for example? I’m not saying politics plays no role, but I do think it’s more nuanced than that, and understanding the judicial philosophies helps fill in some of the gaps. I also don’t think it’s accurate to frame the current court as especially hostile to precedent. A study in 2024 found that the Roberts Court had overturned an average of 1.6 precedents per term, fewer than the Warren (3.1), Burger (3.4), or Rehnquist Courts (2.4) that preceded it: https://www.nytimes.com/2024/01/29/us/supreme-court-precedent-chevron.html. In fairness, I don’t think counting overturned precedents is a perfect metric. Callais, for example, modified a precedent without overturning it. However, I do think these stats point to the fact that all iterations of the Supreme Court overturn precedents at times and the Roberts Court has not been unusually likely to do so.
I appreciate you writing -- no one, certainly not me, is going to get every story right 100% of the time, and I appreciate you sharing your thoughts and feedback.
Thanks to a piece written about this last year, I learned about why the SC case may end the way it has and I agree that the maps were drawn unconstitutionally—both times!
https://sharonmcmahon.substack.com/p/the-courts-next-big-decision-on-race?r=dzorf&utm_medium=ios
Democratic politicians aren't wrong to cast the system as rigged, they're just looking at the system with a wider lens. It's patently unfair that Republicans will jam through a bunch of gerrymanders in the South following the Callais decision, but that Democrats were disarmed by the courts in Virginia when they tried to fight back against the GOP-initiated mid-decade redistricting in Texas. We should have gerrymandering for none, or gerrymandering for all. The nuances of the VA Constitution and the Voting Rights Act don't matter when you look at this way.