ABSTRACT
For partisan gerrymandering, as for population inequality among districts, a traditional objection to judicial activism—that the remedy for the evil should be sought in the legislature, not in the courts—seems especially impertinent. This chapter briefly summarizes the background of Bandemer and the Supreme Court's opinions in the case. It considers the three strongest principled arguments, each based upon one of the public norms mentioned earlier, against a rule that permits partisan gerrymanders meeting the pre-Bandemer districting standards. The chapter concludes that the first two arguments, from political competition and from structural fairness, fail to provide a convincing critique of this practice or a justification for the plurality's constitutional test in Bandemer. The third argument, from fair representation, also fails; its account of the American system oversimplifies the problem of representing minorities. The greater peril lies elsewhere—in the possibility that the Court will actually "succeed" in its newest project of political reform.
