The Dirty Little Secrets of Shaw
Saunders, Melissa L., Harvard Journal of Law & Public Policy
The racial gerrymandering decisions of the 1990s(1) are widely viewed as a resounding victory for the color-blind Constitution.(2) From a distance, they do appear that way. They are replete with rhetoric about the pernicious effects of race-conscious decision making, and they have invalidated many race-conscious districting plans.(3) All of this is surely cause for celebration by those who believe, with Justice Harlan, that the government should not be permitted to deal with people on the basis of their race.(4)
But a closer look dampens that enthusiasm. The legal rule the Court has announced in these cases--the actual constitutional doctrine--is not consistent with the color-blind ideal. Far from it. The Court has not held that the Constitution forbids the use of race in districting; indeed, a majority of the Court has specifically rejected that proposition.(5) Nor has the Court held that the Constitution forbids the use of race in districting absent a truly extraordinary justification. Instead, the Court has held that it is presumptively--though apparently not invariably--unconstitutional to use race as the "predominant factor" in districting, by "subordinat[ing] traditional race-neutral districting principles ... to racial considerations" in drawing district lines.(6) In other words, it is perfectly permissible to use race in assigning voters to districts, even in the absence of compelling justification, as long as you do not do too much violence to "traditional districting principles" along the way.(7) That is not a holding that can be squared with Justice Harlan's ideal, and it is not a holding that anyone who believes in the color-blind Constitution should celebrate. For the true disciple of Justice Harlan, to say that the state "may make `limited' use of race [in districting] is akin to saying one may take a little poison."(8)
If the racial gerrymandering cases cannot be squared with the color-blind ideal, what, then, is the explanation for them? What is the Court up to here? Many people have thought long and hard about this question, and many of them have come to the conclusion that the Court's work here is intellectually incoherent. This is not surprising, they reason, because the five-member majority that has produced these decisions consists of two blocs with very different views about the proper role of race in districting. On one side stand the heirs of Justice Harlan (Justices Scalia and Thomas, and, less consistently, Chief Justice Rehnquist and Justice Kennedy), who believe that the government should never be allowed to use race in districting. On the other stands Justice O'Connor, who believes that we must tolerate some use of race in districting, at least for the moment, though she is deeply troubled by the extremely obvious sort of race-conscious districting that followed the 1990 census. The two views are fundamentally incompatible, and the effort to produce opinions that will satisfy both has left us with unintelligible doctrinal mush--the same sort of doctrinal mush that we saw in Bakke.(9) Shaw v. Reno, these observers conclude, is the Bakke of race-conscious districting.
I have a different view of the racial gerrymandering cases.(10) I think the Court's work here, though inadequately explained, is not nearly as incoherent as its critics contend. Instead, it is simply the latest manifestation of a familiar phenomenon, albeit one we tend to associate more with the Warren Court than with the Rehnquist Court: the crafting of sub-constitutional "prophylaxes" around the individual-rights provisions of the Constitution.(11) Shaw, I suggest, is the Miranda, rather than the Bakke, of race-conscious districting.
In Miranda v. Arizona,(12) the Court relied upon the Fifth Amendment's privilege against self-incrimination to regulate the interrogation of suspects in custody. The premise of the Court's opinion was that, while custodial interrogation was not per se unconstitutional,(13) it posed a serious threat to Fifth Amendment rights and values. …