North Carolina Republican state Sens. Dan Soucek (left) and Brent Jackson review historical maps during a redistricting committee meeting on Feb. 16, 2016. | Corey Lowenstein/The News & Observer via AP, File Law And Order The Supreme Court Case That Could Transform Politics The late Antonin Scalia believed the court was powerless to do anything about gerrymandering. Will today’s justices agree?

On Wednesday, the Supreme Court hears arguments in Benisek v. Lamone, a case about whether Maryland violated the First Amendment rights of Republican voters by redrawing the state’s congressional districts with the goal of making it unwinnable for an incumbent Republican member of Congress. The case may answer not only that question but also a broader one about the courts’ proper role in the political process: Will the late Antonin Scalia’s view that courts should mostly refuse to police incumbency protection and political self-interest prevail?

The Benisek ruling revolves around whether the court is willing to let incumbents set the rules for their own elections to office. In many states, legislators have the power to approve the lines used to create districts in which they will run for reelection—and it is no surprise that these districts are often drawn to the majority party’s advantage, a process known as gerrymandering.


Such was the case in Maryland, where the Democratic-controlled state government redrew congressional boundaries ahead of the 2012 elections in such a way so as to deprive Republican voters of a majority in one of the state’s two remaining GOP-majority congressional districts. There’s no real disagreement over whether this was the Democrats’ motivation—then-Governor Martin O’Malley testified in a 2017 deposition that it was his “hope” and “intent” that redistricting would oust incumbent GOP Congressman Roscoe Bartlett from office, which it did.

The Republican voters who filed the Benisek case argue that just as the government cannot make decisions to hire and fire nonpolicymaking government employees based on whether they are Democrats or Republicans, Maryland’s redistricting plan illegally discriminates against them in elections solely because they are Republicans.

Although Democrats were the gerrymanderers in Maryland, that’s relatively rare these days. With the GOP in control of the legislature in 32 states—and in control of both the legislature and governorship in 26—most gerrymandering cases at the moment involve Republican legislatures sticking it to Democrats. In North Carolina, for instance, after courts forced the state to draw new districts in 2016 when its old ones were found to be racially gerrymandered, the Republican-controlled state Legislature made things even more uneven: The deep-purple, roughly 50-50 state now had a map where Republicans controlled 10 of 13 congressional seats. Asked why he gerrymandered a 10-3 Republican advantage, North Carolina state Representative David Lewis was candid: “Because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

One might think that such self-interested sentiments on the part of political incumbents would have bothered Scalia, the conservative Supreme Court justice who died two years ago last month. In the context of campaign finance law, Scalia was deeply distrustful of politicians, even when they said they were limiting money in politics for altruistic motives. An “incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition,” Scalia wrote in one 1990 ruling. On the issue of money in politics, he believed that virtually any limit violated the First Amendment, and saw such restrictions as incumbency protection schemes passed by legislators to keep themselves in power.

But Scalia was inconsistent when it came to incumbency protection. He dissented in a 1990 case where the majority found that Illinois’ Republican governor would violate the First Amendment by firing or hiring janitors or administrative assistants solely because they were Democrats. Political patronage, Scalia wrote, helped grease the wheels of politics and promoted strong political parties, despite the burden on the First Amendment rights of these nonpolitical workers. In another case, he concluded that the Constitution contained no guarantee of a “fair shot” to win an election.

When it came to gerrymandering, Scalia also favored the incumbents, believing that courts were powerless to do anything about their geographical self-preservation schemes.

For decades, the Supreme Court struggled with when and how to regulate the drawing of legislative districts for partisan and self-interested purposes. Before Scalia joined the court, a fractured decision in 1986’s Davis v. Bandemer held that courts were open to hear cases about partisan gerrymandering—in court parlance, that the claims were “justiciable.” But the standard the court announced—that the gerrymandering would have to be so bad as to consistently frustrate the will of the majority of voters—was so hard to meet that no one was ever able to successfully bring a claim.

In 2004, the court returned to the issue in Vieth v. Jubelirer, which involved allegations of a partisan gerrymander in Pennsylvania. The court divided into three groups: four conservatives, four liberals and one moderate. The liberals believed Bandemer was right about the question of justiciability, but disagreed with its overly stringent standard—and then the justices disagreed with each other about what that standard should look like. Scalia, writing for the conservatives, had the opposite view on justiciability: The courts couldn’t hear gerrymandering cases because there were no “judicially manageable” standards to apply governing when consideration of partisanship in drawing district lines is permissible. Even if an extreme gerrymander were unconstitutional, Scalia believed that the courts were powerless to do anything about it. Justice Anthony Kennedy, writing for himself, agreed with the liberals that partisan gerrymandering claims are justiciable, but agreed with Scalia that none of the proposed standards delineated between permissible and impermissible consideration of partisanship—essentially challenging someone to come up with better standards in a future case.

Now the issue has come to a head. Gerrymandering has become both more egregious and more effective. Rampant partisanship has inflamed the redistricting process, and leaps in voter data and technology have made it easier to draw effective gerrymanders that allow a party to gain seats in a legislature even as the opposing party wins a majority of the votes—as two leading political scientists wrote in a brief filed in a Wisconsin political gerrymandering case . With Benisek, the court has its last best chance to come up with a standard to police gerrymandering ahead of the 2020 Census and the redistricting that will follow.

Much like during Scalia’s life, Kennedy holds the keys to the kingdom, at least for the short term. If he decides Maryland has gone too far in depriving Republican voters of their First Amendment rights, the court could well decide to start policing redistricting—not just in Maryland, but throughout the nation.

But Kennedy will not remain on the court forever, and the forceful counterarguments Scalia made in the redistricting and patronage cases could well win out in the long run if President Donald Trump gets to replace Kennedy—or any of the aging liberal members of the court—with another justice like Scalia, as he has promised to do. Scalia’s views were deeply influential among conservatives, who have followed his lead in only being concerned about incumbency protection when it comes to campaign finance.

If Scalia’s views ultimately prevail, the kind of brazen redistricting we’ve seen in states like Maryland, Wisconsin and North Carolina will become the new norm. So victory may come in for gerrymandering challengers in these cases in the short term, but in the long term, Scalia’s views may live on. On this question and many others, Scalia may be more influential in death than in life.

Richard L. Hasen is the Chancellor’s Professor of Law and Political Science at UC Irvine School of Law and the author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale University Press 2018).

