Republican-Appointed Judges Just Gave the Roberts Court a Stunning Rebuke

On Monday, a three-judge federal court panel with two Trump appointees restored an Alabama congressional map with two majority-Black districts for the 2026 midterm elections, finding that another map recently green lit by the Supreme Court intentionally discriminated against Black voters.

The same panel had already concluded last year following a full trial that Alabama had discriminated against Black voters by refusing to create a new majority-Black congressional district after the Supreme Court ordered it to do so in its 2023 Allen v. Milligan decision. The high court’s conservative majority, however, abruptly reversed that order in the wake its April Louisiana v. Callais decision that gutted the Voting Right Act, and allowed Alabama to use a map with only one majority-Black district for November’s midterms, even though the state’s primary was only a week away and the three-judge panel had invalidated that map based on an exhaustive review of the evidence leading to the conclusion that the legislature had intentionally discriminated against Black voters. It asked the lower court to reevaluate its ruling in light of Callais.

But in a stunning rebuke of the Supreme Court, the panel, made up of three judges nominated by Republican presidents, reached the same conclusion it had before. “Ultimately, we cannot see our way clear to requiring Alabamians to cast their votes in the 2026 elections under a districting plan tainted by intentional race-based discrimination,” the judges wrote in a unanimous opinion. “We do not lightly intrude in state affairs, but our previous review of the undisputed evidence left us in no doubt that Alabama’s legislatively enacted plan (the ‘2023 Plan’) intentionally discriminated based on race in violation of the Constitution. Our re-examination in light of Callais yields the same conclusion.”

The panel reaffirmed intentional racial discrimination, writing “we do not find the issue particularly complex or close.”

In Callais, the Roberts Court majority feigned moderation. It called its revision of past precedent an “update” and promised that Section 2 of the VRA, which required that racial minorities have an equal opportunity to elect candidates of their choice, is still good law—but now in a narrower set of circumstances. But the new standards the opinion set, combined with the six-three Republican majority’s subsequent actions, bely that promise. Callais, on its face, still bans intentional racial discrimination in redistricting. But by vacating the injunction the three-judge panel had issued after justsuch a finding_,_ the high court’s GOP appointees signaled that they intend to use Callais much more broadly than Justice Samuel Alito’s majority opinion initially admitted.

Tuesday’s decision from the three-judge panel, however, takes Callais at its word. Step by step, it lays out why the Alabama map fails under Supreme Court precedent, the VRA, and the Constitution. It repeatedly reminds readers that the Supreme Court agreed with their finding in Allen v. Milligan that Alabama had violated the VRA_,_ and that Callais claimed not to have upset that opinion. If the Supreme Court meant to use Callais to end all claims of anti-Black racial discrimination in gerrymandering, the panel effectively sends the case back to the high court and tells them, do your dirty work yourself.

In an extensive opinion issued Tuesday with analysis running nearly 80 pages, the panel reevaluates its decision to block the legislature’s 2023 map and keep in place one drawn by a special master under both longstanding Supreme Court precedent and the Callais updates. The first is the Purcell Principle, a Supreme Court doctrine which instructs courts not to interfere with election rules too close to voting because of the chaos it could cause. It’s likely that the high court’s conservative majority may be tempted to allow Alabama to implement its 2023 map with one Black majority district on this premise—that a change from what the court ordered after _Callais_at this juncture would cause too much chaos. If they do so, it would be impossible to square such a decision with how the Court had justallowed Alabama to enact a new congressional map one week before the May 19 primary.

But the panel rejects the idea that using the legislature’s discriminatory 2023 map in place for just weeks is anything but an ill-timed and dangerous upset of the status quo. After all, Alabama voters have now used the court-ordered special master’s plan in 2024 and were starting to again this year. “The Special Master Plan will forestall an expensive, aggressive, and perhaps logistically impossible voter reassignment effort,” the opinion states. “Enjoining the unconstitutional 2023 Plan will improve the administrative situation in Alabama, not worsen it.” If the Supreme Court chooses to block this injunction again on Purcell grounds, the panel warns, the high court justices will be the ones putting a new map in place at the last minute.

The opinion then moves on to the meat of its analysis. In Callais, the 6-3 majority made vote dilution claims under the VRA nearly impossible to prove, requiring a showing of intentional discrimination that cannot be explained away by traditional redistricting criteria or partisan preference. It seemed written as if to make the standard so difficult as to be impossible to surmount. But the panel oversaw an extensive trial, leading to an opinion with hundreds of pages of factual findings that amounted to intentional discrimination. They found race, not partisanship, guided the legislature. And so, asked to reconsider their findings, they unanimously found that their opinion still wins the day.

Under Callais, partisanship functions as a get-out-of-jail-free card. If a legislature claims that its goal is partisan advantage, Callais seems to greenlight maps that effectively mute the political voice of minority voters. Moreover, the GOP justices ruled in a case two years ago that courts must accord legislatures a “presumption of legislative good faith” in their redistricting efforts—yet another obstacle to concluding unconstitutional or illegal racial gerrymandering.

But the Alabama panel found that in this case, neither partisanship nor the good faith presumption could rescue the state’s map from convincing evidence of illegal racial discrimination. “The record now includes extensive lawyer argument about purportedly partisan motives for the 2023 Plan, but there is zero evidence the Legislature enacted the 2023 Plan for partisan purposes,” the panel wrote. In other words, they reject the idea that merely saying this is partisan in court is enough if the legislators never said it at the time. “Alabama cannot use Callais to legitimize its pre-Callais decision to double down on the discriminatory vote dilution that we and the Supreme Court found,” the panel wrote. “If such retroactive validation strategies were available, States would be encouraged to govern themselves according to what they think federal law ought to be, not what it is.”

Likewise, the three judges found the presumption of good faith doesn’t get Alabama over the finish line this time. “The unique reality of this evidentiary record overwhelms the strong presumption of legislative good faith,” the panel writes. “If this record does not rebut the presumption, we seriously doubt that it is rebuttable absent a clear and direct expression of invidious discrimination in the text of a bill or official arguments in support of its passage.”

Here, the panel is, at least implicitly, challenging the Supreme Court. Is it merely enough for lawyers to claim partisans goals after the fact? Is the presumption of good faith so strong that it requires ignoring the factual record of a case? Since this case will surely be appealed right back to the Supreme Court, the Republican appointees will have to own this radical rewriting of the law if they want to, once again, block the panel’s decision and let the discriminatory map go into effect.

Finally, the panel likewise looked at its record and reaffirmed its finding of intentional racial discrimination, in violation of the Fourteenth Amendment. “We are painfully aware of the gravity of our ruling, but in this unusual posture and on this extensive record, we do not find the issue particularly complex or close,” they wrote.

Lawmakers in Southern states have moved to eliminate Black representation with alarming speed following the Callais decision, seeking to erase at least five majority-Black districts in Tennessee, Alabama, Louisiana, South Carolina, and Mississippi. Both the substance and timing of the Callais decision was a form of electoral warfare by the Roberts Court, intervening in the midterms in unprecedented fashion to allow Republican-controlled states just enough time to redraw their maps to take away Democratic seats—but not enough time for Democratic-controlled states to fight back.

That gave a huge boost to Trump’s mid-decade gerrymandering push after Democrats had fought Republicans to a surprising draw. But the Callais decision, combined with an equally shocking ruling by the Virginia Supreme Court invalidating a voter-approved congressional redistricting plan, could shift up to ten congressional seats toward the GOP this November, potentially allowing them to hold the House despite Trump’s deep unpopularity.

But now, at least one conservative Southern court panel is telling the Roberts Court: not so fast.