The Appearance of Equality: Racial Gerrymandering, Redistricting, and the Supreme Court

By Christopher M. Burke | Go to book overview

Chapter 3
Case Analyses of Fair Representation Ante Shaw v. Reno

This chapter explains the development of fair representation in the Supreme Court from the 1960's until 1993. I examine cases based on the VRA, the Equal Protection Clause of the 14th Amendment, and the 15th Amendment. The underlying motive for almost all of these decisions, after the initial reapportionment cases of the 1960's, is the desire to accommodate concerns for racial equality. This motive drives a rhetoric that seeks to resolve racial tension by articulating a result that accords minorities fair representation. 1 Persistent racial inequality urges the reconsideration of fair representation. The desire to accommodate race, in some form, is resolved by courts within liberal and communitarian narratives. The narrative of a particular opinion situates a concept of fairness by which race is accounted and given priority over other understandings of fairness. As this chapter demonstrates, politically liberal justices articulate philosophically liberal and communitarian narratives, depending on the fact situation of the case. The same is true of politically conservative justices. Thus, philosophically liberal rhetoric inheres intrinsically to neither the political conservative nor the political liberal. The same may be claimed for communitarian rhetoric.

The use of particular philosophical justifications by the courts is important because the consideration of fair representation is elemental to the legitimacy of a republican democracy. No philosophical position or political belief has a monopoly in the construction of fair representation. This is particularly true when the political community is characterized by stark cleavages among racial groups. As the cases reveal, the courts have not settled the matter of what constitutes fair representation, and further litigation will result. This is a healthy course of events for the political community because it means, that factions continue to justify their interpretations of fair representation. 2 There is no such

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