On January 24, 2022, three federal judges struck down a newly redistricted Alabama map in a case named Singleton v. Merrill. Specifically, the judges — two of which were appointed by former President Trump — cited a violation of Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that are discriminatory. The redrawn map had included only one district out of seven where Black voters could choose a representative, even while Black Americans make up about 27 percent of Alabama’s population. Alabama legislators have until February 11th to create a new map that is not racially gerrymandered.

In the meantime, the case has reached the Supreme Court, under Merrill v. Milligan. Alabama legislators are arguing that when drawing the sample congressional districts, those following Section 2 of the Voting Rights Act are paying too much attention to race. The Supreme Court, in the past, has dismantled parts of the Voting Rights Act in elections: could this court case be a continuation of that history? Or, are the Republican-led judges in the federal court case enough to prove that we can return to trusting courts to safeguard the Constitution and its amendments, regardless of partisanship?

To delve into this question, we first must think about how the nature of the courts has changed. Courts were designed by the U.S. Constitution to reign in abuses of power. The Constitution itself is not enough; according to Levitsky and Ziblatt, we cannot trust it to hold the three branches accountable. [1] The Constitution is too ambiguous, and can therefore be interpreted in many different ways. For example, there is no substantive screening criteria for judges, nor any requirement for ideological variation on the courts. [2] We thus rely on norms  — unwritten, enforced rules  — to set limits on excessive changes. In recent years, the continuation of these norms was disrupted by an increase in polarization, allowing for a change in the rules for judicial appointments and the use of the filibuster. Ultimately, this has led to a more partisan Supreme Court; judges are increasingly viewed through a lens of ideology or party rather than as legal thinkers. In addition, according to Graham and Svolik, voters are likely to support highly partisan candidates that ignore federal judges appointed by the other side. [3] These points lead us to believe that courts in the United States cannot be entirely trusted to reign in abuses of power and in turn, democracy. 

Yet, the described case in Alabama offers a break from the often-partisan lines legislators and courts divide themselves on. The Alabama case may lead to an onslaught of lawsuits for redrawn maps in other states, including South Carolina, Georgia, and Louisiana. As a result, some are suggesting that the Alabama redistricting case could begin to build a new norm. Redistricting legislators would need to follow the Voting Rights Act when creating new maps, otherwise they will face repercussions from their own courts, regardless of party. While this would not mean that the courts would not entirely reign in all abuses of power, to some, it could signal that courts could still function and offer checks to the other branches in a politicized world.

Ultimately, it is simply too soon to tell whether courts can still reign in abuses of power in a politicized world. The courts new confirmation and appointee norms have been shifting and adapting to legislators wants and needs. Even once the Supreme Court decision for Merrill v. Milligan is released, courts still remain politicized, particularly the Supreme Court. Voters in gerrymandered maps will continue to vote for partisan candidates over democratically aligned candidates, which will lead to legislators appointing judges to further their own policy goals. In addition, the Supreme Court in the past has decided that partisan gerrymandering is outside of the scope of federal courts. Instead, they suggest that redistricting efforts should be policed by the legislative branch and on individual states, allowing for minimal checks on gerrymandered maps in the future. In other words, courts are not likely to offer checks on other branches, nor are they very likely to follow new norms quickly.

If we do not have the check of the courts, what strategies can the U.S. employ to combat unfair redistricting? Democratic culture in the United States has become highly politicized, and many party-drawn maps reinforce distinctions within states, resulting in a politicized political governing body. Maps that are drawn by independent commissions or multi-member districts could encourage a less partisan map to be drawn, leading to a more representative share of voters in the elections. But, these solutions would require bipartisan Congressional support.

In the end, it is unlikely that the Alabama redistricting case will result in a new norm being established, or act as an example for courts to fully reign in abuses of power. But, it does offer us hope that even with a heavily politicized environment, courts could every once in a while check the actions of the other branches of government. Ultimately, more concrete steps will need to be taken to reel in the inconsistency of representation in the redistricting process, regardless of the Supreme Court’s decision. 

[1] Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).

[2] Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2018).

[3] Matthew H. Graham and Milan W. Svolik, Democracy in America? Partisanship, Polarization, and the Robustness of Support for Democracy in the United States (American Political Science Review, 2020).