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Full Opinion
with whom Justice Ginsburg and Justice Breyer join as to Parts II-V, dissenting.
As I have explained on prior occasions, I am convinced that the Court’s aggressive supervision of state action designed to accommodate the political concerns of historically disadvantaged minority groups is seriously misguided. A majority’s attempt to enable the minority to participate more effectively in the process of democratic government should not be viewed with the same hostility that is appropriate for oppressive and exclusionary abuses of political power. See, e. g., Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243-249 (1995) (Stevens, J., dissenting); Miller v. Johnson, 515 U. S. 900, 931-933 (1995) (Stevens, J., dissenting); Shaw v. Reno, 509 U. S. 630, 634-635 (1993) (Shaw I) (Stevens, J., dissenting); Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 316-317 (1986) (Stevens, J., dissenting); Cousins v. City Council
As the Court analyzes the case, it raises three distinct questions: (1) Should North Carolina’s decision to create two congressional districts in which a majority of the voters are African-American be subject to strict constitutional scrutiny?; (2) If so, did North Carolina have a compelling interest in creating such districts?; and (3) If so, was the creation of those districts “narrowly tailored” to further the asserted compelling interest? The Court inadequately explains its answer to the first question, and it avoids answering the second because it concludes that its answer to the third disposes of the case. In my estimation, the Court’s disposition of all three questions is most unsatisfactory.
After commenting on the majority’s treatment of the threshold jurisdictional issue, I shall discuss separately the three questions outlined above. In doing so, I do not mean to imply that I endorse the majority’s effort to apply in rigid fashion the strict scrutiny analysis developed for cases of a far different type. I mean only to show that, even on its own terms, the majority’s analysis fails to convince.
I
I have explained previously why I believe that the Court has failed to supply a coherent theory of standing to justify its emerging and misguided race-based districting jurisprudence. See Miller v. Johnson, 515 U. S., at 929-931 (Stevens, J., dissenting); United States v. Hays, 515 U. S. 737, 750-751 (1995) (Stevens, J., concurring in judgment). The Court’s analysis of the standing question in this case is similarly unsatisfactory, and, in my view, reflects the fact that the so-called Shaw claim seeks to employ the federal courts to impose a particular form of electoral process,
I begin by noting that this case reveals the Shaw claim to be useful less as a tool for protecting against racial discrimination than as a means by which state residents may second-guess legislative districting in federal court for partisan ends. The plaintiff-intervenors in this case are Republicans. It is apparent from the record that their real grievance is that they are represented in Congress by Democrats when they would prefer to be represented by members of their own party. They do not suggest that the racial identity of their representatives is a matter of concern, but it is obvious that their political identity is critical. See Pope v. Blue, 809 F. Supp. 392 (WDNC 1992).
Significantly, from the outset of the legislative deliberations, the Republican Party did not oppose the creation of more than one majority-minority district. Indeed, several plans proposed by the Republicans in the state legislature provided two such districts. 861 F. Supp. 408, 460 (EDNC 1994). However, now that.the State has created a district that is designed to preserve Democratic incumbents, and now that the plaintiff-intervenors’ partisan gerrymandering suit has been dismissed for failure to state a claim, these intervenors have joined this racial gerrymandering challenge.
It is plain that these intervenors are using their allegations of impermissibly race-based districting to achieve the same substantive result that their previous, less emotionally charged partisan gerrymandering challenge failed to secure. In light of the amorphous nature of the race discrimination claim recognized in Shaw I, it is inevitable that allegations of racial gerrymandering will become a standard means by which unsuccessful majority-race candidates, and their par
Even if the other plaintiffs to this litigation do object to the use of race in the districting process for reasons other than partisan political advantage, the majority fails to explain adequately the nature of their constitutional challenge, or why it should be cognizable under the Equal Protection Clause. Not surprisingly, therefore, the majority’s explanation of why these plaintiffs have standing to bring this challenge is unconvincing.
It is important to point out what these plaintiffs do not claim. Counsel for appellees put the matter succinctly when he stated that this case is not Gomillion v. Lightfoot, 364 U. S. 339 (1960).
What then is the wrong that these plaintiffs have suffered that entitles them to call upon a federal court for redress? In Shaw I, the majority construed the plaintiffs’ claim to be that the Equal Protection Clause forbids race-based dis-tricting designed solely to “separate” voters by race, and that North Carolina’s districting process violated the prohibition. Ibid. Even if that were the claim before us, these plaintiffs should not have standing to bring it. The record shows that North Carolina’s districting plan served to require these plaintiffs to share a district with voters of a different race. Thus, the injury that these plaintiffs have suffered, to the extent that there has been injury at all, stems
Perhaps cognizant of this incongruity, counsel for plaintiffs asserted a rather more abstract objection to race-based dis-tricting at oral argument. He suggested that the plaintiffs objected to the use of race in the districting process not because of any adverse consequence that these plaintiffs, on account of their race, had suffered more than other persons, but rather because the State’s failure to obey a constitutional command to legislate in a color-blind manner conveyed a message to voters across the State that “there are two black districts and ten white districts.”
Such a challenge calls to mind Justice Frankfurter’s memorable characterization of the suit brought in Colegrove v. Green, 328 U. S. 549, 552 (1946). “This is not an action to recover for damage because of the discriminatory exclusion of a plaintiff from rights enjoyed by other citizens,” he explained. “The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity.” Ibid. Suits of this type necessarily press the boundaries of federal-court jurisdiction, if they do not surpass it. When a federal court is called upon, as it is here, to parse among varying legislative choices about the political structure of a State, and when the litigant’s claim ultimately rests on “a difference of opinion as to the function of representative government” rather than a claim of discriminatory exclusion, Baker v. Carr, 369 U. S. 186, 333 (1962) (Harlan, J., dissenting), there is reason for
Even if an objection to a State’s decision to forgo colorblind districting is cognizable under some constitutional provision, I do not understand why that provision should be the Equal Protection Clause. In Reynolds v. Sims, 377 U. S. 533, 561 (1964), we were careful to point out that “[a] predominant consideration in determining whether a State’s legislative apportionment scheme constitutes an invidious discrimination violative of rights asserted under the Equal Protection Clause is that the rights allegedly impaired are individual and personal in nature.” In addition, in Palmer v. Thompson, 403 U. S. 217, 225 (1971), we explained that racially motivated legislation violates the Equal Protection Clause only when the challenged legislation “affect[s] blacks differently from whites.”
To be sure, as some commentators have noted, we have permitted generalized claims of harm resulting from state-sponsored messages to secure standing under the Establishment Clause. Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 499-524 (1993). It would be quite strange, however, to confer similarly broad standing under the Equal Protection Clause because that Clause protects against wrongs which by definition burden some persons but not others.
Here, of course, it appears that no individual has been burdened more than any other. The supposedly insidious messages that Shaw I contends will follow from extremely irreg
Indeed, to the extent that any person has been burdened more than any other by the State’s districting plan, geography rather than race would seem to be to blame. The State has not chosen to subject only persons of a particular race to race-based districting. Rather, the State has selected certain geographical regions in which all voters — both white and black — have been assigned to race-based districts. Thus, what distinguishes those residents who have received a “color-blind” districting process from those who have not is geography rather than racial identity. Not surprisingly, therefore, Shaw I emphasizes that the race of the members of the plaintiff class is irrelevant. Shaw I, 509 U. S., at 641.
Given the absence of any showing, or, indeed, any allegation, that any person has been harmed more than any other on account of race, the Court’s decision to entertain the claim of these plaintiffs would seem to emanate less from the Equal Protection Clause’s bar against racial discrimination than from the Court’s unarticulated recognition of a new substantive due process right to “color-blind” districting itself. See id., at 641-642.
Even if there were some merit to the constitutional claim, it is at least clear that it requires the recognition of a new constitutional right. For that very reason, the Court’s suggestion that pre-Shaw, race discrimination precedent somehow compels the application of strict scrutiny is disingenuous. The fact that our equal protection jurisprudence requires strict scrutiny of a claim that the State has used race as a criterion for imposing burdens on some persons but not others does not mean that the Constitution demands that a similar level of review obtain for a claim that the State has used race to impose equal burdens on the polity as a whole, or upon some nonracially defined portion thereof. As to the latter claim, the State may well deserve more deference when it determines that racial considerations are legitimate in a context that results in no race-based, unequal treatment.
To take but one example, I do not believe that it would make sense to apply strict scrutiny to the Federal Government’s decision to require citizens to identify their race on census forms, even though that requirement would force citizens to classify themselves racially, and even though such a requirement would arguably convey an insidious message about the Government’s continuing belief that race remains relevant to the formulation of public policy. Of course, if the Federal Government required only those persons residing in
The majority ignores these concerns and simply applies the standing test set forth in United States v. Hays, 515 U. S. 737 (1995), on the apparent assumption that this test adequately identifies those who have been personally denied “equal treatment” on account of race. Id., at 745. In Hays, the Court held that a plaintiff has standing to challenge a State’s use of race in districting for Shaw claims if he (1). lives in a district that allegedly constitutes a racial gerrymander or (2) shows that, although he resides outside such a district, he has been personally subject to a racial classification. Ante, at 904. On this basis, the Court concludes that none of the plaintiffs in this action has standing to challenge District 1, but that two of them have standing to challenge District 12. Ibid.
As I understand it, the distinction drawn in Hays between those who live within a district, and those who do not, is thought to be relevant because voters who live in the “gerrymandered” district will have suffered the “personal” injuries inflicted by race-based districting more than other state residents.
Even if I were to accept the flawed assumption that the Hays test serves to identify any voter who has been burdened more than any other as a consequence of his race, I would still find it a most puzzling inquiry. What the Court fails to explain, as it failed to explain in Hays, is why evidence showing either that one lives in an allegedly racially gerrymandered district or that one’s district assignment directly resulted from a racial classification should suffice to distinguish those who have suffered the representational and stigmatic harms that supposedly follow from race-based districting from those who have not.
If representational injuries are what one must show to secure standing under Hays, then a demonstration that a voter’s race led to his assignment to a particular district would perhaps be relevant to the jurisdictional inquiry, but surely not sufficient to satisfy it. There is no necessary correlation between race-based districting assignments and inadequate representation. See Davis v. Bandemer, 478 U. S. 109, 132 (1986) (opinion of White, J.). Indeed, any assumption that such a correlation exists could only be based on a stereotypical assumption about the kind of representation that politicians elected by minority voters are capable of providing. See Miller v. Johnson, 515 U. S., at 930 (Stevens, J., dissenting).
To prove the representational harms that Hays holds are needed to establish standing to assert a Shaw claim, one would think that plaintiffs should be required to put forth evidence that demonstrates that their political representatives are actually unlikely to provide effective representation to those voters whose interests are not aligned with those of the majority race in their district. Here, as the record reveals, no plaintiff has made such a showing. See
If under Hays the so-called “stigmatic” harms which result from extreme race-based districting suffice to secure standing, then I fail to see why it matters whether the litigants live within the “gerrymandered” district or were placed in a district as a result of their race. As I have pointed out, all voters in North Carolina would seem to be equally affected by the messages of “balkanization” or “racial apartheid” that racially gerrymandered maps supposedly convey, cf. Davis, 478 U. S., at 153 (O’Connor, J., concurring in judgment).
Even if race-based districting could be said to impose more personal harms than the so-called “stigmatic” harms that Hays itself identified, I do not understand why any voter’s reputation or dignity should be presumed to have been harmed simply because he resides in a highly integrated, majority-minority voting district that the legislature has deliberately created. Certainly the background social facts are not such that we should presume that the “stigmatic harm” described in Hays and Shaw I amounts to that found cognizable under the Equal Protection Clause in Brown v. Board of Education, 347 U. S. 483, 495 (1954), where state-sponsored school segregation caused some students, but not others, to be stamped with a badge of inferiority on account of their race. See Shaw I, 509 U. S., at 682, n. 4 (Souter, J., dissenting).
In sum, even if it could be assumed that the plaintiffs in this case asserted the personalized injuries recognized in Hays at the time of Shaw I by virtue of their bare allegations of racial gerrymandering, they have surely failed to prove
II
The District Court concluded that Shaw I required the application of strict scrutiny in any case containing proof that “racial considerations played a ‘substantial’ or ‘motivating’ role in the line-drawing process, even if they were not the only factor that influenced that process.” 861 F. Supp., at 431. The court acknowledged that under this standard any deliberate effort to draw majority-minority districts in conformity with the Voting Rights Act would attract the strictest constitutional review, regardless of whether race-neutral districting criteria were also considered. Id., at 429. As a consequence, it applied strict scrutiny in this case solely on the basis of North Carolina’s concession that it sought to draw two majority-minority districts in order to comply with the Voting Rights Act, and without performing any inquiry into whether North Carolina had considered race-neutral districting criteria in drawing District 12’s boundaries.
As the majority concludes, the District Court’s test for triggering strict scrutiny set too low a threshold for subjecting a State’s districting effort to rigorous, if not fatal, constitutional review. Ante, at 905. In my view, therefore, the Court should at the very least remand the case to allow
Subsequent to the District Court’s decision, we handed down Miller v. Johnson, 515 U. S. 900 (1995), and issued our summary affirmance in DeWitt v. Wilson, 515 U. S. 1170 (1995). As I understand the Miller test, and as it was applied in DeWitt, state legislatures may take racial and ethnic characteristics of voters into account when they are drawing district boundaries without triggering strict scrutiny so long as race is not the “predominant” consideration guiding their deliberations. Miller v. Johnson, 515 U. S., at 916. To show that race has been “predominant,” a plaintiff must show that “the legislature subordinated traditional race-neutral districting principles ... to racial considerations” in drawing that district. Ibid.; see also id., at 928 (O’Connor, J., concurring) (“To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices”); DeWitt v. Wilson, 856 F. Supp. 1409, 1412 (ED Cal. 1994), aff’d in part, dism’d in part, 515 U. S. 1170 (1995) (declining to apply strict scrutiny because State complied with traditional districting principles).
Because “the legitimate consideration of race in a dis-tricting decision is usually inevitable under the Voting Rights Act when communities are racially mixed,” Shaw I, 509 U. S., at 683 (Souter, J., dissenting), our decisions in Miller, DeWitt, and Bush have quite properly declined to deem all race-based districting subject to strict scrutiny. Unlike many situations in which the consideration of race itself necessarily gives rise to constitutional suspicion, see, e. g., Batson v. Kentucky, 476 U. S. 79 (1986); Adarand Constructors, Inc. v. Peña, 515 U. S. 200 (1995), our precedents have sensibly recognized that in the context of redistricting a plaintiff must demonstrate that race had been used in a particularly determinative manner before strict constitutional scrutiny should obtain. Cf. Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This higher threshold for triggering strict scrutiny comports with the fact that the shared representational and stigmatic harms that Shaw purports to guard against are likely to occur only when the State subordinates race-neutral districting principles to a racial goal. See Shaw I, 509 U. S., at 646-649; 861 F. Supp., at 476-478 (Voorhees, C. J., dissenting); Pildes & Niemi, 92 Mich. L. Rev., at 499-524.
Shaw I is entirely consistent with our holdings that race-based districting which respects traditional districting prin
Moreover, Miller belies the conclusion that strict scrutiny must apply to all deliberate attempts to draw majority-minority districts if the Equal Protection Clause is to provide any practical limitation on a State’s power to engage in race-based districting. Although Georgia argued that it had complied with traditional districting principles, the Miller majority had little difficulty concluding that the State’s race-neutral explanations were implausible. Miller v. Johnson, 515 U. S. 900 (1995).
The notion that conscientious federal judges will be able to distinguish race-neutral explanations from pretextual ones is hardly foreign to our race discrimination jurisprudence. In a variety of contexts, from employment to juror selection, we have required plaintiffs to demonstrate not only that a
In holding that the present record shows race to have been the “predominant” consideration in the creation of District 12, the Court relies on two pieces of evidence: the State’s admission that its “overriding” purpose was to “ ‘create two congressional districts with effective black voting majorities,’ ” ante, at 906; and the “ ‘geographically non-compact’ ” shape of District 12, ibid. In my view, this evidence does not suffice to trigger strict scrutiny under the “demanding” test that Miller establishes. Miller v. Johnson, 515 U. S., at 928 (O’Connor, J., concurring).
North Carolina’s admission reveals that it intended to create a second majority-minority district.
District 12’s noncompact appearance also fails to show that North Carolina engaged in suspect race-based districting. There is no federal statutory or constitutional requirement that state electoral boundaries conform to any particular ideal of geographic compactness. In addition, although the North Carolina Constitution requires electoral districts for state elective office to be contiguous, it does not require them to be geographically compact.
There is a more fundamental flaw in the majority’s conclusion that racial concerns predominantly explain the creation of District 12. The evidence of shape and intent relied on by the majority cannot overcome the basic fact that North Carolina did not have to draw Districts 1 and 12 in order to comply with the Justice Department’s finding that federal law required the creation of two majority-minority districts. That goal could have been more straightfor
That the legislature chose to draw Districts 1 and 12 instead surely suggests that something more than the desire to create a majority-minority district took precedence. For that reason, this case would seem to present a version of the very hypothetical that the principal opinion in Bush suggests should pose no constitutional problem — “an otherwise compact majority-minority district that is misshapen by predominantly nonracial, political manipulation.” Bush, post, at 981.
Here, no evidence suggests that race played any role in the legislature’s decision to choose the winding contours of District 12 over the more cartographically pleasant boundaries proposed by the Attorney General.
Unlike most States, North Carolina has not given its chief executive any power to veto enactments of its legislature. Thus, even though the voters had elected a Republican Governor, the Democratic majority in the legislature was in control of the districting process. It was the Democrats who first decided to adopt the 11-white-district plan that arguably would have violated §2 of the Voting Rights Act and gave rise to the Attorney General’s objection under §5. It was also the Democrats who rejected Republican Party maps that contained two majority-minority districts because they created too many districts in which a majority of the residents were registered Republ