A pessimistic prediction on the Supreme Court partisan gerrymandering case

I am not optimistic that the Supreme Court will rule partisan gerrymandering unconstitutional. This is not only because the majority is Republican and the phenomenon benefits Republicans, though that is also a factor. Basically, I think Constitutional logic and neoliberal patterns of thought will make it impossible to overthrow.

First, there is no Constitutional principle that requires the courts to guarantee the viability of the two-party system, much less to seek rough parity between the two parties (as “fair” maps would do). The Constitution was designed under the assumption that there would be no permanent parties, and our legislators remain much more entrepreneurial and autonomous than in a classic parliamentary system, even with increasing partisanship and party discipline. The only question that is Constitutionally accessible is whether the system is rigged for individual legislators.

And that brings us to neoliberal logic. Wendy Brown has shown how deeply neoliberal thought patterns affect Supreme Court arguments, even on seemingly non-economic matters. And Will Davies has demonstrated how the romance of entrepreneurialism has affected neoliberal thought on anti-trust. Whereas the early neoliberals were strongly in favor of anti-trust laws, the Chicago school — which actually had the most direct impact on legal and policy thinking on anti-trust — maintained that as long as some kind of “disruptive innovation” (to use the term somewhat anachronistically) remained conceivable, there was no reason to break a monopoly. I imagine the same reasoning will carry through to the topic of maintaining competitiveness in the market for legislators: as long as it’s conceivable that someone could come along and dislodge a given legislator, the demand for competitiveness is satisfied.

And if we accept the focus on the individual legislator, they’re not even wrong. The same party that has engaged most in partisan gerrymandering has also proven to be most susceptible to primary challenges — so a mechanism for replacing undesired legislators already exists and is fully functional. Yes, it’s hard to replace a Republican with a Democrat, but from the Constitutional perspective, there’s no such thing as a Republican or Democrat, there are just individual members of Congress.

This is not the outcome that I want, but I think it is the outcome that is most likely. If they do overturn partistan gerrymandering, I predict that the reasoning will be either very vulnerable to challenge, very narrow in its possible application, or both.