In our podcast this week, Rich and I discussed the divided ruling by a three-judge panel in Texas federal court holding unconstitutional the state’s redistricting proposal, which aims to redraw boundaries in a way the Republican-controlled state government hopes will yield five additional Republican-leaning seats in time for the 2026 midterms.
An appeal to the Supreme Court was immediately filed by Texas Attorney General Ken Paxton (a Republican who is challenging Senator John Cornyn in a primary in hopes of taking Cornyn’s seat in 2026). On Friday, Justice Samuel Alito, who is the Circuit Justice for emergency applications from the Fifth Circuit, issued an administrative stay, suspending the panel’s ruling.
As we’ve discussed on other occasions, an administrative stay is merely a brief pause that enables a higher court (here, the Supreme Court) to get quickly up to speed on the issues involved in a case. Justice Alito has ordered the respondents in the case – Abbott v. League of United Latin American Citizens – to respond to Texas’s emergency application by close of business Monday (November 24). He is likely to refer the case to the full Court for further action.
While political gerrymandering is not justiciable, the panel – over a smoldering dissent by Judge Jerry Smith (a Reagan appointee to the Fifth Circuit) – ruled that Texas had carried out a racially motivated gerrymander, which is justiciable. The majority opinion was written by Judge Jeffrey V. Brown, a Trump appointee, and joined by Judge David Guaderrama an Obama appointee. The two opinions in the case run a combined 264 pages.
Redistricting cases do not follow the usual federal route of: decision by a single trial judge in the district court, then intermediate appeal to a three-judge panel of the appropriate Circuit appellate court, and finally appeal to the Supreme Court, whose certiorari jurisdiction allows it to choose which cases it will hear. Instead, under Section 2284 (of Title 28, U.S. Code), redistricting cases are assigned to three-judge, composed of two district judges and a judge of the Circuit court (i.e., the Circuit in which the district where the complaint was filed is located). Under Section 1253, an appeal from the three-judge panel’s decision is taken directly to the Supreme Court. The Court is required to review the case (though it may dispose of the case summarily).
Relatedly, in October, the Court heard oral argument in Louisiana v. Calais, in which it is considering whether Louisiana violated the Voting Rights Act by failing to create a second majority-black congressional district. A decision in that case is expected when or before the Court’s term ends in late June or early July 2026.