Why a Republican Supreme Court just handed a victory to Democrats

On Wednesday, the Supreme Court handed down a one-sentence order announcing that California’s newly gerrymandered maps, which are expected to give Democrats as many as five more seats in the US House, may go into effect during the 2026 midterms. These maps were enacted to counterbalance a Republican gerrymander in Texas, which could also give Republicans as many as five House seats.

If you believe that the Supreme Court applies consistent legal rules, regardless of who benefits from them, then Wednesday’s order in Tangipa v. Newsom is completely unsurprising. In January, the Court handed down a different order blessing Texas’s Republican gerrymander. That decision, in a case called Abbott v. LULAC, didn’t just permit Texas’s maps to take effect; it also imposed new, extraordinarily high barriers in front of any plaintiff challenging a legislative map.

So, if the Court had struck down California’s maps after issuing such a broad decision in the Texas case, the only plausible explanation would have been partisanship.

The Republican justices, moreover, routinely bend the rules when they feel strongly about the politics of a particular case. In Whole Woman’s Health v. Jackson (2021), a decision shielding an anti-abortion law from judicial review, five of the Court’s Republicans handed down a legal rule that, if applied in cases that don’t involve abortion, would allow any state to eliminate any constitutional right. In Kennedy v. Bremerton School District (2022), the Republican justices made up fake facts to justify ruling in favor of a conservative Christian litigant — and then stuck to their made-up narrative even after Justice Sonia Sotomayor produced photographic evidence that they were lying.

The truth is that neither the Court’s most earnest defenders — who believe that every Supreme Court decision is rooted in a good faith effort to apply the law to the facts of a particular case — nor the Court’s most bitter cynics paint a fully accurate picture of how this Court operates. The justices consider a wide range of factors when they decide a case, including what outcome they would prefer, which party they are more sympathetic toward, which outcome their political party prefers, what outcome is dictated by their own previous opinions, and what the law actually says.

In some cases, especially cases that involve technocratic issues that are not politically controversial, all nine justices typically decide their case based solely on what the law says. In cases involving particularly contentious issues, such as abortion, the Court often decides the case based solely on the justices personal preferences. Many cases exist on a spectrum between these two extremes.

Additionally, there are some cases, such as Tangipa, where many of the justices’ broader ideological commitments cut against the outcome they would prefer. It’s safe to say that all six of the justices who held that Trump is allowed to commit crimes would also like Republicans to control the House of Representatives. But these justices have also staked out a strong ideological position against all gerrymandering suits, and that ideological view appears to have triumphed over their narrow partisan interests in Tangipa.

This is normal behavior by partisan public officials. Members of Congress also sometimes cast votes that cut against their political party’s immediate interests, but that are rooted in a broader ideology. All lawmakers balance their own personal preferences against the interest of their party, the interests of their constituents, and the politics of the moment.

For much of 2020, the global economy was in a deep recession triggered by the Covid-19 pandemic and the resulting lockdowns. It was also a presidential election year, and Republicans were in a bind. Trump was in the White House, and incumbent parties typically lose big when they have to campaign during a recession. Just ask John McCain.

In the midst of this economic crisis, congressional Democrats behaved completely irrationally from the perspective of a party determined to maximize its electoral gains. Then-House Speaker Nancy Pelosi did not simply work with the Trump administration to craft stimulus bills that would lift many Americans from the depths of the Covid recession. She attacked her Republican counterparts for not doing more to stimulate the economy. When Republicans announced a “skinny” stimulus package in the fall of 2020, Pelosi and then-Senate Democratic Leader Chuck Schumer denounced it as an “emaciated bill” pushed by an “extreme right-wing that doesn’t want to spend a nickel to help people.”

The reason why is that Democrats generally, and Pelosi in particular, have a longstanding ideological commitment to Keynesian economics — which teaches that the government should spend more during economic downturns. This commitment stretches back to the New Deal, President Franklin D. Roosevelt’s successful plan to lift the nation out of the Great Depression. Pelosi, who was speaker during the 2008–’09 recession, also helped push big spending bills through Congress to address that recession.

If Pelosi had been a more ruthless partisan, she might have sabotaged any proposal to stimulate the economy, with the expectation that Trump would bear the blame for his inability to get a bill through Congress. She may even have made unreasonable demands, hoping that the White House would refuse them and get tarred as misers. Instead, Pelosi’s Democrats worked with Republicans to pass trillions in economic stimulus.

Meanwhile, many congressional Republicans are currently pushing legislation that would likely diminish their chances of winning future elections, because of a broader ideological commitment to more restrictive voting laws.

But both parties are probably behaving irrationally, at least from the perspective of cynical electoral politics. Republicans formed an ideological commitment to restrictive voting legislation decades ago, when low-propensity voters were more likely to support Democrats than Republicans. Democratic President Barack Obama, for example, won both of his presidential elections by comfortable margins, but Democrats struggled in lower-turnout midterms during the Obama administration.

Indeed, during Obama’s presidency, Republicans sometimes spoke openly about their belief that they could skew elections by making it slightly more difficult to vote. In 2012, for example, Pennsylvania’s House Republican leader Mike Turzai claimed that a state law requiring voters to show ID at the polls is “gonna allow [Republican presidential candidate Mitt] Romney to win the state of Pennsylvania.”

Under Trump, however, this dynamic has reversed. Low-propensity voters now prefer Republicans, while the kind of highly engaged suburban voters who favored Romney in 2012 have trended toward Democrats. So it is far from clear that voting restrictions that Republicans embraced years ago would actually help them today. If anything, legislation like the SAVE Act might help Democrats win elections.

In any event, it’s hardly surprising to say that political parties hold consistent ideological positions even when those positions cut against their short-term interests. The parties typically hew to a few core positions even when it costs them at the polls. For instance, anyone who has paid attention to US politics knows that a vote for a Republican member of Congress is a vote for upper-income tax cuts and deep cuts to anti-poverty programs such as Medicaid. A vote for a Democratic candidate is typically a vote for the opposite. And this has been true for many years.

Both Obamacare and the 2017 Trump tax cuts were unpopular when they became law, and each party knew that the efforts could hurt them in the 2010 and 2018 midterms. But Democrats enacted health reform and Republicans enacted their tax cuts regardless, because of deep ideological commitments to these projects.

Similarly, Supreme Court justices also have predictable views that can be determined solely by looking at which president appointed them. Republican justices oppose abortion and affirmative action, and support broad legal immunity for religious conservatives, among other things. Democratic justices support the opposite outcomes. And justices of both parties tend to stick to these views regardless of how they poll at any particular time.

Now let’s return to the Tangipa case, where a GOP-controlled Supreme Court voted in favor of a Democratic gerrymander. This decision closely resembles Pelosi’s support for economic stimulus in 2020, or Republicans’ continuing commitment to voting restrictions that are likely to impact their own voters. Though Tangipa is a short-term loss for the Republican Party, it is consistent with the GOP’s longstanding views on gerrymandering.

The Supreme Court used to permit federal courts to hear lawsuits alleging that a legislative map drawn to benefit one party or the other violates the Constitution. But the Court’s Republican majority shut these lawsuits down in Rucho v. Common Cause (2019). Five years later, in Alexander v. South Carolina NAACP (2024), the Republican justices went a step further, declaring that “as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.”

Having abolished federal lawsuits challenging partisan gerrymanders, the Court’s Republicans then started to dismantle longstanding legal rules prohibiting racial gerrymanders — that is, legislative maps that are drawn to minimize the voting power of voters of a particular race. Indeed, the Court’s recent decision in LULAC, the Texas gerrymandering case, was a major milestone in this broader project to shut down anti-gerrymandering lawsuits. Among other things, LULAC held that “ambiguous” evidence must always be construed against a plaintiff alleging that a map was drawn for impermissible racial reasons.

It probably goes too far to say that this Court would allow literally any racial gerrymander to survive judicial scrutiny. If a state passed a law called the “White Supremacist We Want to Bring Back Jim Crow, So These Maps Were Drawn by the Ku Klux Klan Act of 2026,” it is likely that at least two of the Court’s Republicans would vote to strike it down. But LULAC and other recent Supreme Court decisions impose such high barriers on anti-gerrymandering plaintiffs that a state legislature’s racist intent would need to be extraordinarily explicit before this Court would step in.

And so the Republican justices voted to uphold a Democratic gerrymander in Tangipa. They did not do so because they are particularly worried about Democratic voting rights or Democratic chances in the midterms. They did so because that decision is consistent with their broader project to eliminate nearly all lawsuits challenging gerrymanders.