The Supreme Court ruled on Friday that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. This decision should surprise no one because, about two weeks ago, the Supreme Court ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election.

That second decision, moreover, followed an even earlier one by Justice Brett Kavanaugh, which ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. In that matter, Kavanaugh acted alone under a process that allows a single justice to dispose of a case — a process that the justices rarely invoke unless they view a case as so one-sided that there’s no need to formally refer it to their colleagues.

So, for those keeping track at home, that’s three times that the Supreme Court needed to decide the same exact question in less than three weeks. 

This happened because of an extraordinary round of defiance by Republican judges in the lower courts. Just minutes after Kavanaugh determined (for the first time) that Missouri cannot use the Republican gerrymander, a Trump-appointed judge in Missouri tried to countermand Kavanaugh’s decision. Then, after the full Court reaffirmed Kavanaugh’s decision, a panel of three Republican appellate judges again tried to reinstate the new maps that the Supreme Court had already twice rejected.

These judges’ behavior is disturbing. But it is also potentially a window into the future of the Supreme Court — at least if Republicans keep winning elections that allow them to fill seats on the federal judiciary.

The lower federal courts are gravid with ambitious Republican judges who reach conclusions that are either too extreme or too partisan for the current Supreme Court — such as the ones they reached in this case. These courts are also full of plausible candidates for a Supreme Court nomination who have shown unwavering loyalty to Trump, the MAGA movement, or the Republican Party — regardless of whether there are legal arguments supporting the GOP’s preferred outcomes.

Indeed, one lower court, the US Court of Appeals for the Fifth Circuit, now functions as a kind of think tank for MAGA legal theories that less partisan judges would scoff at in disgust. This is the same court, for example, that attempted to pull the abortion medication mifepristone from the market. It’s a court that declares entire federal agencies unconstitutional. Or that orders thousands of lawfully cast ballots thrown in the trash after the Republican Party asks them to do so. The Fifth Circuit is also frequently reversed from the left by the Supreme Court.

That means that, if Republicans hold onto the Senate after the upcoming 2026 midterm elections, Trump will be able to easily identify and confirm Supreme Court nominees who make Justice Samuel Alito, the most partisan member of the current Court, look like an icon of disinterested fairness. And many of these ultra-partisan judges are young enough that they will remain viable Supreme Court candidates in future Republican administrations.

Eliminating judicial filibusters transformed who gets nominated to federal judgeships

About 13 years ago, the Senate fundamentally changed how federal judges are confirmed. Prior to late 2013, senators in the minority party could use the filibuster to block any judicial nominee who couldn’t find 60 senators who would support their confirmation. But the Senate voted in November of 2013 to allow judges to be confirmed by a simple majority vote.

Both parties have their own narratives blaming the other for this development. Republicans often claim that Democrats’ decision to filibuster a handful of President George W. Bush’s lower court nominees — before the second Bush administration, judicial filibusters were rare — was a major escalation in the partisan war over judicial confirmations. Democrats, meanwhile, blame Republicans for a significant uptick in judicial filibusters under President Barack Obama.

In any event, Senate Democrats eventually decided to allow judges to be confirmed by a majority vote after Republicans filibustered all of Obama’s nominees to three vacant seats on the powerful US Court of Appeals for the DC Circuit. That broke a logjam that otherwise would have prevented Obama from filling any of these seats, but it also created a new world where lawyers who wished to become federal judges or justices no longer needed to worry about winning votes from senators in the other party.

This new world was apparent immediately after Trump took office the first time in 2017. There was a vacant seat on the Supreme Court, largely because Senate Republicans had held it open for a year until Trump could fill it. 

During his first term, Trump largely delegated the task of picking judges to the Federalist Society, a kind of bar association for right-wing lawyers. And the Federalist Society was obsessively focused on weakening the power of federal agencies to regulate private business. 

Trump’s eventual nominee for the open seat, now-Justice Neil Gorsuch, secured his new job by advertising his eagerness to advance the conservative legal movement’s top priority. Shortly before his nomination, Gorsuch wrote a pair of opinions laying out his plan to make federal agencies subservient to the judges. And one of these opinions, according to the journalist David Kaplan, “proved decisive in clinching” the nomination for Gorsuch.

In the pre-2013 world, judges with Supreme Court ambitions often avoided making their most controversial views public out of fear that doing so would antagonize other-party senators who they might need to support their confirmation to a higher court. In 2011, for example, Kavanaugh, then a judge, was assigned to a panel considering the constitutionality of Obamacare. But he dodged the key issue in the case, instead claiming that he lacked jurisdiction to rule on whether Obamacare is lawful.

After Gorsuch’s anti-regulatory opinions scored him a Supreme Court seat, however, lower court judges took notice. And the most ambitious Republican judges started looking for opportunities to prove their conservative bona fides to the Trump White House. Before 2017, for example, Kavanaugh had avoided taking a public position on abortion. Months after Gorsuch’s confirmation, however, Kavanaugh gave a speech to a conservative think tank signaling that he would be a vote to overrule Roe v. Wade if he were given a promotion.

The confirmation process, in other words, now favors candidates who audition for judicial jobs by demonstrating that they are dependable votes on issues that drive their political party. This is especially true for Republican judicial candidates, because the Trump White House has shown such favor toward candidates who are personally loyal to Trump. But Democrats who want a judicial appointment also have similar incentives. 

Gorsuch got his seat because Republicans, who controlled the Senate in 2016 when Justice Antonin Scalia’s death opened a vacancy on the Supreme Court, refused to confirm anyone that Obama nominated to fill this seat. It now appears, in other words, that no Democrat can get confirmed to the Supreme Court unless their party controls the Senate. So Democrats with Supreme Court ambitions also have no incentive to make nice with Republicans.

The way to get a high-powered judgeship is to convince your own political party that you will use that judgeship to advance its goals.

Republican judges are openly auditioning for the Supreme Court

Gorsuch and Kavanaugh are hardly the only judges who started advertising their ideological and partisan loyalty in an apparent effort to get ahead. The lower courts are now full of judges who write extreme and often needlessly provocative opinions that seem designed to catch the eye of someone in the White House.

The Ninth Circuit’s Lawrence VanDyke, for example, is a particularly vulgar judge who was reportedly on Trump’s short list for the Supreme Court during his first term. He’s best known for opinions mocking his colleagues and left-leaning litigants in a tone more often found on MAGA podcasts than in judicial opinions. VanDyke began an opinion about transgender women last March, for example, with the line “this is a case about swinging dicks.”

Or consider Andrew Oldham, a Fifth Circuit judge known for his opinions undercutting the First Amendment, attacking voting by mail, and standing up for vaping companies’ ability to sell bubblegum-flavored nicotine products — among other things. Oldham’s chambers is a factory pumping out decisions that even cause many of the Supreme Court’s Republicans to cringe — his vaping opinion was tossed out in a unanimous decision by Alito — but that also align perfectly with the Trump administration’s preferred policy outcomes.

The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

Or take Judge James Ho, Oldham’s colleague on the Fifth Circuit, who is also known for his trolly opinions attacking liberal shibboleths. Rather than attempt to summarize Ho’s jurisprudence, I will simply refer readers to my 2023 profile of him: “The edgelord of the federal judiciary.”

I could name more judges who behave similarly — I bring up these three largely because they’ve been discussed in the national media as potential Supreme Court candidates if Trump gets to appoint another justice. But there’s no need to belabor the point. The bottom line is that, if a vacancy does open up on the Supreme Court, Trump will have no shortage of judges who appear to have spent their judicial careers looking for opportunities to demonstrate just how eager they are to advance a MAGA agenda, even when that means moving several steps to the right of a Supreme Court dominated by conservative Republicans.

Indeed, the Missouri incident reveals just how widespread these sorts of judicial partisans are within the lower courts. None of the Republican judges who tried to reinstate the Missouri gerrymander after it was rejected by the Supreme Court, for example, have received the same attention that VanDyke, Oldham, and Ho have received as possible Supreme Court candidates. One of them, Judge James Loken, is an 86-year-old George H.W. Bush nominee with no prospects whatsoever of getting promoted.

But the culture in the lower courts has grown so open to partisan decisionmaking that he, along with two younger colleagues, literally tried to give the Republican Party an extra US House seat after the Supreme Court had told them not to do it twice.

Which isn’t to say that every Republican federal judge, or even every Trump appointee, is a partisan hack. One of the most pointed opinions rejecting Trump’s attempt to overthrow former President Joe Biden’s victory in the 2020 election, for example, was authored by Judge Stephanos Bibas, a Trump appointee. But, while Bibas’s opinion in Donald J. Trump for President v. Secretary (2020) was excellent, it also almost certainly guaranteed that he will never become a justice. And it absolutely guaranteed that he will never be nominated by Trump.

There’s no good solution to this problem

The biggest reason why America is stuck in this mess is that its two major parties have polarized on the proper role of judges. Even setting aside the youngest generation of hyperpartisan judges, it’s long been the case that any Republican nominated to the Supreme Court will be a reliable vote against causes like abortion rights, affirmative action, and the Voting Rights Act, and an equally reliable vote in favor of the “unitary executive” and for religious conservatives who seek exemptions from state and federal laws. Any Democrat, meanwhile, will take the opposite position on these, and a whole array of other issues where the two parties have consistent positions.

This is why restoring the old filibuster rules that existed prior to 2013 will not succeed in moderating the judiciary. If anything, allowing the minority party to filibuster judges again would mean that no one would ever be confirmed to the Supreme Court, because any nominee who is acceptable to one party would be radioactive in the other party.

Ultimately, the only effective way to keep people like Oldham, Ho, or VanDyke off the Supreme Court is to elect senators and presidents who do not want them on the Supreme Court. The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

With the midterms just under six weeks away, more Republican candidates are coming to the belated realization that, if they want to save their seats, they could perhaps use some distance from the very unpopular president whose approval is reaching new lows.

Now, after a decade in which President Donald Trump has demanded — and increasingly received — near-total loyalty from his parties’ candidates and congressional delegation, and used his bully pulpit to launch harsh personal attacks on Republicans who don’t provide it, such distancing attempts remain cautious and limited.

But they are growing more common. And this isn’t just in the toughest blue territory — even Republicans in states or districts Trump won overwhelmingly are now rushing to emphasize how they don’t agree with the president on some of his most controversial and unpopular agenda items. 

“It’s only natural that candidates would seek to create distance from Trump, especially on issues — like the Iran war — that are unpopular,” GOP strategist Douglas Heye told me. “That doesn’t guarantee success, and can be a hard needle to thread, but it’s the natural play.”

For now, the primary motivator is political. But today’s election-year cracks could be signs of larger breaks later, especially as Republicans look toward life without the singular figure who’s dominated the last decade-plus of party politics. 

A party running away from major parts of the lame-duck president’s agenda today might be repudiating parts of his legacy tomorrow — with potentially major implications for governance. And if Trump’s record is truly deemed a failure by Republicans, the GOP’s future will be wide open.

Where the general election cracks are starting to show

The boldest break in recent weeks has been from Rep. María Elvira Salazar of Florida, who represents a heavily Hispanic Miami-Dade County district that Trump won solidly in 2024. 

Last week, Salazar released a campaign ad in which she spoke directly to the camera and addressed Trump, saying: “Mr. President, some of your immigration enforcement efforts have gone too far.” She added: “The same Hispanics that helped you get to the White House in 2024 feel betrayed today.”

The ad was the most dramatic sign yet that Trump’s ongoing polling collapse with Latino voters — a critical component of his 2024 coalition — is showing up for Republican campaigns as well. As Salazar’s ad suggested, many swing voters interpreted Trump’s “mass deportation” talk as a promise to clamp down on border crossings and remove dangerous criminals — not to patrol the streets with militarized operations going after otherwise law-abiding migrants, many of whom have established ties to the community. If the backlash proves real in places like Florida and Texas, it could affect how future Republicans approach the issue.

That same week, two incumbent House members in Iowa in tough races decided to let their votes tell the tale. Reps. Mariannette Miller-Meeks and Zach Nunn both voted for a resolution to end Trump’s war in Iran, and each posted on social media that they opposed an “open-ended war.”  

Vice President JD Vance, who reports suggest was privately opposed to the decision to launch the military operation, mentioned at the Republican convention in Dallas that slain conservative activists Charlie Kirk “hated war,” but stuck with Trump even when he disagreed — an apparent plea to wavering Trump voters to do the same.

Polls show strong opposition to the war among the public, and if it continues to be a drag on GOP candidates, that could strengthen the currently embattled faction of the GOP that urges caution about foreign entanglements. On Tuesday, two more Republicans — Rep. Tom Tiffany, running for governor of Wisconsin, and Sen. Jon Husted, running for Senate in Ohio — publicly said it was time to bring the war to an end. (Husted caveated this by saying that ending the conflict would require a deal with Iran, and that he wouldn’t vote for the congressional resolution to end the war.)

Wisconsin GOP candidate for governor Rep. Tom Tiffany today on rising gas prices and Iran: "I just believe we should be exiting Iran, that it's time to move on … Time to come home, take care of business here in America." pic.twitter.com/oHo1QjiGDr

— Matt Smith (@mattsmith_news) September 22, 2026

Rep. Ashley Hinson, who is the GOP’s Senate nominee in Iowa, has also been cautiously seeking a bit more distance from Trump by, for instance, opposing his plan to cut tariffs on foreign beef imports since it would increase competition for local cattle ranchers, the New York Times recently reported.

Sen. Roger Marshall in Kansas, facing a reelection race that polls suggest is surprisingly competitive, has publicly criticized Trump’s tariffs on aluminum and steel, saying they hurt businesses in his state.

Even two members of the right-wing House Freedom Caucus who are both running for governor — Tiffany in Wisconsin and Rep. Byron Donalds in Florida — are making similar rhetorical adjustments. 

Tiffany disagreed with Trump renaming Lake Ontario “Lake America,” an action taken as part of Trump’s overwhelmingly unpopular trade war with Canada. And Donalds removed many mentions and pictures of the president from his website this week, the Miami Herald reported (replacing a pledge to “Enact the Trump Agenda” with one to focus on “affordability”).

This isn’t entirely a new phenomenon. Some Republicans in blue states or districts — like Sen. Susan Collins of Maine and Rep. Brian Fitzpatrick of Pennsylvania — have long tried to play up their disagreements with Trump, to position themselves as independent voices. 

But many other candidates are still clinging tightly to Trump. “I am still with that guy,” Michael Whatley, the GOP Senate nominee in North Carolina, said at a rally with Trump last week. Ken Paxton, running for Senate in Texas, is similarly sticking by Trump (despite Trump’s constant digs at how Paxton dresses). It doesn’t hurt that Trump’s super PAC could be a critical player in theirs, and others’, races.

And when GOP candidates do try to stress their independence, it typically comes in the form of saying they disagree with the president on a particular issue that’s going over poorly in their state or district — most often either tariffs, the Iran war, or immigration.

The GOP candidates’ double bind

Through much of the Trump era, Republicans have faced a powerful incentive to minimize openly breaking with the president — because they feared Trump would be vindictive enough to use his bully pulpit against them, as he has against his GOP critics in the past.

Strategically, candidates face a double bind, as stressing their independence from Trump can theoretically help with swing voters who have soured on the president, but it also could hurt turnout among the Trump-loyal base.

“It’s a fine line to walk,” GOP pollster Whit Ayres told me. “You don’t want to look like you’re being disloyal to a Republican president, because you could end up with a Truth Social tweet that would destroy the support of Republicans who like Donald Trump for your campaign.”

For Republicans in redder states or districts, Trump’s engagement could still be their candidates’ greatest asset — he could help spur them to go to the polls and help frame the midterm contest in purely partisan terms.

“Motivation in midterm cycles matters a lot,” Patrick Ruffini, a pollster at Echelon Insights, recently posted on X. Ruffini’s argument is that, due to the Senate map and gerrymandering in the House, many more competitive seats this cycle are in states Trump won big. So, he argued, “raising Republicans’ motivation to vote will go further than it did in 2018 because of the political terrain this election is being fought on.”

But if Trump’s approval is reaching new lows, that calculus could change — even in redder areas. A Reuters/Ipsos poll released Monday found Trump’s approval at 32 percent, the worst result in that poll since Trump entered politics.

That could explain the new round of distancing we’ve been seeing in recent weeks. And if the polling bears out and the party does end up suffering substantial losses, it could potentially hasten that trend, as Republicans grow more wary of tying themselves tightly to an 80-year-old who won’t be on the ballot again. 

Should Democrats regain control of the House, Senate, or both, there would be no shortage of votes they could call to test just how far Republicans are willing to break with Trump on issues like immigration, tariffs, and the war. It could also create a difficult position for the next Republican presidential nominee — especially if it’s Trump’s own vice president — as they seek to incorporate lessons from the backlash without offending Trump.

For his part, Trump has been relatively restrained in response to all this, perhaps recognizing what a difficult political situation his party is in. Asked by reporters about Salazar’s ad Friday, he called her “a nice person” but “a little bit softer on the border.” 

But he couldn’t resist adding: “Without me, she wouldn’t have gotten elected.”