How the Supreme Court Gerrymandered the Law to Serve the GOP
Last week, the Supreme Court finished releasing its opinions in the cases argued in the October 2024 term. In decision after decision, it became clear that the Republican justices have gerrymandered the law to generate a bunch of legal rules that fit pretty neatly into the Republican Party’s preferences.
Need proof? Take a look at the Court’s near-end-of-term decision in Medina v. Planned Parenthood. There, the issue was whether the general civil rights statute, 42 U.S.C. § 1983, supplied a cause of action to enforce a provision of the federal Medicaid Act that guarantees Medicaid patients the ability to select a qualified provider of their choice. Section 1983 authorizes lawsuits for deprivations of rights, privileges or immunities secured by federal law. The Medicaid Act is a federal law, codified in the U.S. Code.
Justice Gorsuch’s majority opinion for the Republican justices, however, pointed out that the Medicaid Act isn’t just any old federal law — it is spending power legislation. That means the Act outlines a deal: It contains a set of conditions that states agree to in order to receive certain federal funds — here, money to fund a state’s provision of Medicaid. Spending power legislation, the Republican appointees concluded, was more in the nature of a contract than a law, and therefore generally can’t be enforced under civil rights law.
The idea that spending power legislation is especially unenforceable is convenient for a Republican Party that is attacking public benefits legislation. Several Republican-led states refused to accept the Affordable Care Act’s Medicaid expansion, and the various iterations of the Republicans’ budget bills would result in substantial cuts to Medicaid. By its nature, public benefits legislation is often spending power legislation — supplying the public benefits means supplying federal funds for those benefits through the spending power. Now, the very category of laws that the Republican justices pronounced are unusually and atypically unenforceable happen to be the very ones the Republican Party is coming for.
Other kinds of lawless exceptions similarly advance the interests of the Republican Party. This past spring, the Supreme Court issued a cursory decision that allowed President Donald Trump to fire the heads of two multi-member commissions, the National Labor Relations Board and the Merit Services Protection Board. The Court’s barebones reasoning signaled that presidents have the power to fire the heads of multi-member commissions. Except, the Republican justices added, the head of one specific multi-member commission — the Federal Reserve Board. THAT commission is just different, the justices pronounced. In a mish-mash of words and phrases, the Republican justices said that “The Federal Reserve is a uniquely structured, quasi-private entity that follows” a “distinct historical tradition.” The case wasn’t even about the Federal Reserve Board, but in the course of granting Donald Trump an ever expanding set of powers, the Republican justices wanted to ensure that a Republican president wouldn’t crash the economy. So they created what Justice Elena Kagan called “a bespoke Federal Reserve exception” and helpfully saved a Republican administration from itself.
Other decisions concerning executive power were similarly gerrymandered to favor Republican political projects. Take the Court’s end-of-term blockbuster decision on nationwide injunctions — federal trial courts’ authority to block an illegal policy and prevent the illegal policy from being applied to anyone anywhere. In the much-watched case Trump v. CASA, the Republican justices announced that federal courts generally lack the authority to block federal government policies on a nationwide basis, applied to parties that are not before the court, at least in cases brought by individual plaintiffs.
Buried in a footnote, the Republican justices gestured at a possible exception that might apply in litigation filed under the Administrative Procedure Act. In those cases, the justices noted, courts may have the power to set aside a federal policy on a nationwide basis. As its name suggests, the Administrative Procedure Act is a federal law that governs judicial challenges to actions taken by federal administrative agencies such as the Environmental Protection Agency. Those same administrative agencies, of course, have been in the crosshairs of the Republican Party, which has railed against the deep state and attempted to fire thousands of people who work for the agencies. The possible exception for APA cases, then, preserves the possibility that federal courts could block policies that are created by the administrative agencies that the Republican Party is seeking to undermine — even though federal courts generally cannot block policies that are created by presidents, whose powers the Republican Party has long pushed to expand (at least when the presidents are Republican). Once again, the law makes it easier for Republicans to accomplish one of their political objectives.
The Court also made a choice to select this particular moment as the time to weigh in on nationwide injunctions. Only five months into the Trump administration, the federal executive is engaging in brazen, systematic violations of law and attacking the legitimacy of lower court decisions that enforce the law against the administration. Intervening now, in that context, exacerbates that threat to the rule of law. The justices also selected a case where the administration’s violations of law are plain for all to see. By refusing to tackle the merits at the same time they addressed the remedy, the Court gave the administration something of a win in a case where they least deserve it — and a notch in the administration’s belt in its war on the lower federal courts.
Once again, the law makes it easier for Republicans to accomplish one of their political objectives.
The Republican justices also gerrymandered the law by selectively boosting some precedents while discarding others. Take Mahmoud v. Taylor, the end-of-term decision holding that conservative religious parents had a First Amendment right to opt their children out of classroom instruction that involved certain LGBTQ+ inclusive material. Mahmoud criticized the lower courts for giving short shrift to the 1972 precedent Wisconsin v. Yoder, which held that Amish parents had a right to opt their children out of compulsory education after the eighth grade.
In the process of elevating one precedent, Yoder, the majority discounted another, Employment Division v. Smith. Smith said that generally applicable laws that do not distinguish between religious and non-religious practices are presumptively constitutional. The policy in Mahmoud is generally applicable — it prohibits opt outs from instruction including LGBTQ+ materials whether they arise from religious or non-religious grounds. So, Justice Alito declared, Smith just doesn’t apply based on “the character of the burden”: “[W]hen the burden imposed is of the same character as that imposed in Yoder,” Smith just doesn’t apply. Yoder, Justice Alito’s majority insisted, now stands for the broad proposition that “the Free Exercise Clause” prohibits policies that carry “a very real threat of undermining the religious beliefs” that “parents wish to instill in their children.”
The precise implications of Mahmoud’s treatment of Smith and Yoder remain to be seen. We have no idea when the Supreme Court might conclude that a burden imposed “is of the same character as that imposed in Yoder” and now Mahmoud. Smith involved a federal criminal law that subjected people to prosecution for engaging in the religious practice of using peyote. Apparently that’s no big deal, but having your kid read storybooks such as “Uncle Bobby’s Wedding” is. The gerrymandered jurisprudence allows the Republican justices to opt out of Smith when they so choose — very convenient for a Republican Party that chooses to cater to some religions and religious believers but not others. The justices adopted a standard with enough flexibility to enable selectivity in its application (just as their carveouts to the rule against nationwide injunctions did).
United States v. Skrmetti, the decision upholding Tennessee’s ban on gender affirming care for transgender minors, also resurrected a case from the jurisprudential graveyard. Skremetti relied repeatedly on Geduldig v. Aiello, the 1970s sex discrimination case that had said discrimination on the basis of pregnancy wasn’t discrimination on the basis of sex. Geduldig had reasoned that pregnancy discrimination couldn’t be sex discrimination because pregnancy discrimination reflected objective, real biological differences between the sexes. That logic gestures toward the idea of separate spheres — a way of justifying paternalism toward women and patriarchy more generally. That, too, may prove pretty convenient for a Republican Party that is open to restoring traditional sex and gender roles — because they reflect the facts of nature.
The Republican justices’ pattern of gerrymandered judging happened in less high profile cases as well. In Free Speech Coalition v. Paxton, the Court decided how closely courts should review a Texas law that required certain online content providers (those supplying pornography) to verify the age of a user before allowing them access to a website. The majority supplied a panoply of reasons for selecting a different standard of review than the one used in prior cases. Some of the reasons fit the general pattern of the Republican justices fashioning the law to allow Republicans to do what they want. At one point, Justice Clarence Thomas’ majority opinion proclaimed that “the First Amendment” only “partially protects [the] speech” in question. That rationale gives a leg up to a proposal in the foreword to Project 2025 — namely that “pornography should be outlawed” since “[i]t has no claim to First Amendment protection.”
In her dissent for the Democratic appointees, Justice Elena Kagan characterized her Republican colleagues’ reasoning this way:
In the end, the majority’s analysis reduces to this: Requiring age verification does not directly burden adults’ speech rights because adults have no right to be free from the burden of age verification. Gerrymander the right to incorporate the burden, and the critical conclusion follows.
The Republican-appointed justices are not just gerrymandering rights to produce their preferred outcomes. They are gerrymandering and gerry-rigging the law itself to track the political objectives of the Republican Party. Perhaps any one or some of this set of general rules with bespoke exceptions might be justified. But collectively, they make clear that the Republican appointees are fashioning the law based on the vibes of the Republican Party. That is the “law” they think should govern us all.
Leah Litman is a professor of law at the University of Michigan and a co-host of the Strict Scrutiny podcast. She is also the author of the recent NYT Best-Seller LAWLESS: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, & Bad Vibes