Strict Scrutiny – “SCOTUS Greenlights Racial Gerrymandering in Texas”

Podcast: Strict Scrutiny (Crooked Media)
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Date: December 5, 2025

Episode Overview

In this urgent bonus episode, Leah, Kate, and Melissa dissect the Supreme Court’s recent shadow docket order permitting Texas to use new racially gerrymandered electoral maps in the next midterm elections. The hosts deliver a scathing, irreverent, and deeply informed critique, exposing the anti-democratic implications, the Court’s disregard for lower court findings, and the wider assault on voting rights and multiracial democracy. The discussion is laced with legal analysis, dark humor, and righteous outrage over what they see as the Supreme Court's blatant partisanship in electoral law.

Key Discussion Points and Insights

1. Background of the Texas Redistricting Case

• Redistricting Basics
  • Redistricting usually follows the decennial census; Texas already finished its post-2020 cycle.
  • This is the first cycle after Rucho v. Common Cause and Shelby County v. Holder—both drastically limiting federal remedies for partisan and racial gerrymandering. (04:33)
• Trump DOJ’s Unprecedented Push
  • After losing popularity and seeing a risk to Republican congressional power, Trump’s DOJ—led by Harmeet Dhillon—pressured Texas to redraw electoral maps mid-cycle, claiming prior maps were “illegal racial gerrymanders” due to the presence of minority coalition districts. (05:47)
  • The DOJ distorted prior 5th Circuit precedent, inventing the notion that coalition districts are unlawful. (06:11)
• Texas’s Response
  • Texas eagerly complied, drawing new maps erasing districts where minority voters held power, increasing Republican seats.
  • A three-judge federal district panel—two Trump appointees and one “anti-Soros troll”—found the new map to be an illegal racial gerrymander. (07:13)

2. The Supreme Court’s Shadow Docket Order

• Undercutting Lower Courts
  • Six Republican Justices stayed the lower court’s order, allowing the gerrymandered maps to be used in the upcoming election (about 11 months away). (10:12)
  • The Supreme Court ignored a 160-page, fact-rich district court opinion, dismissing the factual findings with a cursory “nuh.” (13:20, 22:07)
• Reasoning (Such as It Is)
  • The Court claimed the lower court failed to “presume legislative good faith,” even when Texas and the DOJ admitted racial motives.
    • Kate Shaw: “It is not clear, to my mind at least, what the presumption of good faith has to do with a case where they admit it.” (13:57)
  • Plaintiffs were criticized for not producing an alternative map that preserved the Republican partisan edge but without racial discrimination. (14:43)
    • Melissa Murray: “This requirement ... effectively legalizes racial gerrymandering so long as minority voters choose not to vote Republican.” (14:43)
  • The Court referenced the Purcell Principle—“courts shouldn’t change election rules on the eve of an election”—even though Texas deliberately changed its maps close to the election, engineering the timing. (15:54)
    • Quoting Justice Kagan’s dissent: “This gives every state the opportunity to hold an unlawful election. That cannot be the law. Except of course that today it is.” (16:22)
• Blueprint for Future Gerrymanders
  • The hosts stress that this order effectively gives state legislatures a “how-to manual” for getting Supreme Court approval for racially discriminatory maps: just pass them close to an election.

3. The Political and Legal Context

• Disregard for Lower Courts and Precedent
  • The Supreme Court, normally an appellate body, is supposed to defer to trial court fact-finding; here it discards those findings, displaying “disaster piece theater” and “legal improv: Second City, but not remotely fucking funny.” (22:07–23:11)
  • Kate Shaw emphasizes the profile of the district judge (Jeffrey Brown): “an ideological fellow traveler with this court majority,” reinforcing the insult as not partisan but systemic. (24:31)
• Alternative Map Requirement is Lawless
  • The district court explained the alternative map requirement (from Alexander v. South Carolina NAACP) does not apply when there is direct evidence of racial discrimination.
  • Leah Litman (quoting Alito’s prior opinion): “An alternative map can go a long way… in circumstantial evidence cases. You only need it when you don't have direct evidence.” (26:22)
  • Justice Kagan’s dissent: “The word [‘near dispositive’] appears only three times in the whole U.S. Reports.” (28:15)
• Partisan vs. Racial Gerrymandering
  • The tight link between race and partisan affiliation in voting is exploited: so long as the Court blesses partisan gerrymanders and requires proof that a non-racial path to the same partisan result was possible, racial gerrymandering is effectively legalized. (29:08–29:36)
    • Kate Shaw: “Maybe it can't be done, but maybe that's because race and partisan affiliation are often so tightly correlated ... when you celebrate partisan gerrymandering, you’re actually celebrating ... racial gerrymandering...” (29:09)
  • The Supreme Court’s stance has evolved from courts not being able to do anything about partisan gerrymandering, to blessing it, to potentially recognizing a Constitutional right of Republicans to hold power. (30:10–30:41)

4. Political Hypocrisy and Racial Politics

• Trump’s Anti-Somali and Racist Remarks
  • The episode features a chilling Trump rally clip dehumanizing Somali immigrants and Rep. Ilhan Omar (12:09).
    • Trump: “Ilhan Omar is garbage. Her friends are garbage....” (12:09)
  • Kate Shaw quotes law professor Nikolas Bowie’s observation:
    • “This man may be the most racist president this country has ever had and 12 presidents owned slaves.” (13:06)
  • The hosts tie the racist gerrymandering order to Trump’s racist rhetoric as part of the same anti-democratic project.

5. The Path Ahead and Call to Action

• Demoralization of Trial Courts
  • The hosts praise district judges and voting rights litigators for continuing to build a factual record, even as SCOTUS erases their work.
  • Melissa Murray: “Please keep issuing these opinions ... it is so necessary to make clear just how off the rails and lawless this court is being.” (25:14)
• Impending Supreme Court Cases
  • The Louisiana v. Kelly case is pending: highly likely, the Court may strike down a pro-minority district plan (Louisiana) while upholding Texas’s anti-minority gerrymander—highlighting the hypocrisy. (30:52)
• Adam Serwer’s Summary:
  • “The Constitution is colorblind. Unless you want to discriminate against non whites, then it's fine. Not just fine. It's offensive for you to object to racist maps designed to disenfranchise non whites. How dare you?” (31:55)
• Bleak Outlook but Continued Fight
  • The hosts caution against despair, insisting that “there will be a time when law again matters. ... We are all going to fight another day because there is no alternative.” (34:40–35:12)

Memorable Quotes & Timestamps

• Melissa Murray, on the Supreme Court order:
  “For me, the most egregious aspect of all of this is that it is such a colossal, gigantic, titanic fuck you to voters... There is not even the patina of neutrality here.” (10:12)

• Leah Litman, on the shadow docket:
  “If any order says the country isn’t getting fucked while fucking the country, it is an order that fucks with election maps.” (11:06)

• Quoting Justice Kagan’s Dissent:
  “This gives every state the opportunity to hold an unlawful election. That cannot be the law. Except of course that today it is.” (16:22)

• Melissa Murray:
  “Standards of review are for suckers... Facts are for fucking losers.” (22:07)

• Leah Litman, referencing Alito’s past opinion:
  “The alternative map. That’s for a circumstantial evidence case. You only need it when you don’t have direct evidence. Like... It was enraging.” (26:22)

• Kate Shaw:
  “When you celebrate partisan gerrymandering, you are actually celebrating ... racial gerrymandering ... like, make it make sense. Any of it.” (29:09)

• Adam Serwer (via Blue Sky, quoted by Litman):
  “The Constitution is colorblind. Unless you want to discriminate against non whites, then it’s fine. Not just fine. It’s offensive for you to object to racist maps designed to disenfranchise non whites. How dare you?” (31:55)

• Kate Shaw, closing:
  “There will be a time when law again matters, so nobody has the luxury to just check out of the fight. We are all going to fight another day because there is no alternative.” (34:40)

Timestamps for Important Segments

• Background & Case Primer: 03:28–07:50
• District Court Decision & Dissent: 07:50–09:09
• Supreme Court Order Breakdown: 09:09–16:22
• Trump’s Racist Rhetoric & Analysis: 11:29–13:20
• Supreme Court’s Rationale & Implications: 13:20–17:30
• Analysis of Lower Court Disregard: 20:50–25:14
• Debunking the ‘Alternative Map’ Requirement: 25:14–29:36
• Louisiana v. Kelly Foreshadowing & Supreme Court Hypocrisy: 30:52–31:36
• Reflections on Legal and Political Fallout: 31:55–35:12

Style and Tone

The discussion is bold, skeptical, laced with legal expertise and irreverent humor (“disasterpiece theater,” “legal improv … not remotely fucking funny,” “titanic fuck you to voters”). The hosts balance sarcasm and despair with a persistent call to civic and legal engagement, never losing sight of their advocacy for democracy and the rule of law.

Useful Takeaway:
This episode is a potent critique of the Supreme Court’s apparent transformation into a nakedly partisan body, willing to override both factual records and long-standing law to serve political ends. The episode offers insight into American redistricting litigation, the shadow docket’s perils, and the urgent necessity of fighting for genuine multiracial democracy—even when the institutions seem rigged against it.