Justice Scalia, Partisan Gerrymandering, and Fixing Our Democracy

When Justice Antonin Scalia delivered the unanimous opinion of the Court in "Shapiro v. McManus" on December 8, no one suspected it was his final decision. However, it could well turn out to be one of the most momentous of the term.

February 18, 2016

When Justice Antonin Scalia delivered the unanimous opinion of the Court in Shapiro v. McManus on December 8, no one suspected it would be one of his final decisions. In many ways, the case was hardly a fitting coda for one of the most seminal justices of the last quarter century — a dry, eight-page ruling on a technical statutory issue with none of the color, passion, or humor that made reading Scalia decisions and dissents a joy, even for those who disagreed with him.

However the Shapiro decision, which dealt with when a three-judge panel is required in a redistricting case (it’s hard to get much drier than that) could well turn out to be one of the most momentous of the term.

The ruling kept alive a challenge to the 2011 Democratic gerrymander of Maryland’s congressional map and set the stage for the Supreme Court to consider the question of partisan gerrymandering for the first time in a decade — and perhaps to finally establish rules reining in the worst of partisan redistricting abuses.

When the high court last took up the question in the mid-2000s, it deadlocked badly. In Vieth v. Jubelirer in 2004, four of the justices declared, in a characteristically vigorous plurality decision by Justice Scalia, that the issue was off limits to the courts because there were no “judicially discernible and manageable standards” for gauging when mapdrawers went too far. Another four justices thought the issue was a proper one for the courts and proposed various tests for determining when a partisan gerrymander had occurred. Justice Anthony Kennedy found himself in the familiar role of the middleman, neither prepared to embrace any of the tests offered by his Supreme Court colleagues nor prepared to join Justice Scalia in saying the issue was forever outside the purview of the courts.

Two years later, the Court came back to the issue in LULAC v. Perry, a case that came out of Texas’s controversial mid-decade redistricting. The result was familiar. Once again, Justice Kennedy and the liberal justices were unable to agree on a standard, and Justice Scalia, joined by Justice Clarence Thomas, urged the Court to declare partisan gerrymandering claims entirely outside the scope of the judicial branch.

Since then, the issue has largely remained dormant. In the meantime, partisan gerrymandering has only gotten worse. We’ve seen technology improve, making it possible to draw districts with increasing mirco-precision to achieve pre-determined partisan outcomes. And in the South, the growing polarization of partisanship along racial lines has enabled white lawmakers to defend maps on the grounds that they were not trying to disadvantage African Americans and Latinos but merely Democrats (who are mostly African American and Latino).

But this all could change, with the Supreme Court giving Maryland gerrymandering claims a fresh lease on life and Whitford v. Nichol, a partisan gerrymandering case from Wisconsin, set for trial in May 2016. If either or both arrive at the Supreme Court in the next couple years, as seems likely, it will be a very different Supreme Court that decides the cases — potentially one that is dramatically more receptive to partisan gerrymandering claims.

In fact, with the deaths of Justice Scalia and Chief Justice William Rehnquist, and the retirement of Justice Sandra Day O’Connor, only Justice Thomas remains of the 2004 plurality in Vieth that would have made partisan gerrymandering claims forever off limits to courts.

By contrast, Chief Justice John Roberts and Justice Samuel Alito expressly refused to opine on the subject in LULAC, and Justices Sonia Sotomayor and Elena Kagan have not had a chance to weigh in on partisan gerrymandering since joining the bench. Justice Kennedy, along with Justices Ruth Bader Ginsburg and Stephen Breyer, have all expressed varying degrees of support for policing partisan gerrymandering abuses through the courts. Of course, there is also the looming question of what Justice Scalia’s successor will have to say on the subject.

In short, what might have looked at best like a narrow opportunity to sway Justice Kennedy and eke out a 5-4 decision suddenly looks very different and potentially much more hopeful for those looking to end partisan gerrymandering.