Usually, but I looked a bit into this. The GOP has a solid argument. The dems are saying since they won a theoretical majority they should get to pick the speaker. But “parties” aren’t really a thing and the speaker is just whoever gets the majority of the votes of those present, regardless of party or theoretical majority. So if they really do have more people show up, and they vote, that’s the speaker. Of course that is only until the dems have enough votes to recite and change it, but this is a basic aspect of rules, not even something a judge should get involved with.