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Miller vs. Johnson

written by Justice John Paul Stevens

Justice Stevens, dissenting.

Justice Ginsburg has explained why the District Court's opinion on the merits was erroneous and why this Court's law-changing decision will breed unproduc- tive litigation. I join her excellent opinion without reservation. I add these comments because I believe the respondents in these cases, like the respondents in United States v. Hays, ante, p. ___, have not suffered any legally cognizable injury.

In Shaw v. Reno, 509 U. S. ___ (1993), the Court crafted a new cause of action with two novel, troubling features. First, the Court misapplied the term -gerry- mander,- previously used to describe grotesque line- drawing by a dominant group to maintain or enhance its political power at a minority's expense, to condemn the efforts of a majority (whites) to share its power with a minority (African Americans). Second, the Court dispensed with its previous insistence in vote dilution cases on a showing of injury to an identifiable group of voters, but it failed to explain adequately what showing a plaintiff must make to establish standing to litigate the newly minted Shaw claim. Neither in Shaw itself nor in the cases decided today has the Court coherently articulated what injury this cause of action is designed to redress. Because respondents have alleged no legally cognizable injury, they lack standing, and these cases should be dismissed. See Hays, ante, at ___ (Stevens, J., concurring in judgment) (slip op., at ___).

Even assuming the validity of Shaw, I cannot see how respondents in these cases could assert the injury the Court attributes to them. Respondents, plaintiffs below, are white voters in Georgia's Eleventh Congressional District. The Court's conclusion that they have standing to maintain a Shaw claim appears to rest on a theory that their placement in the Eleventh District caused them -`representational harms.'- Hays, ante, at ___ (slip op., at 8), cited ante, at 7. The Shaw Court explained the concept of -representational harms- as follows: -When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the mem- bers of that group, rather than their constituency as a whole.- Shaw, 509 U. S., at ___ (slip op., at 16). Although the Shaw Court attributed representational harms solely to a message sent by the legislature's action, those harms can only come about if the message is received-that is, first, if all or most black voters support the same candidate, and, second, if the success- ful candidate ignores the interests of her white constitu- ents. Respondents' standing, in other words, ultimately depends on the very premise the Court purports to abhor: that voters of a particular race -`think alike, share the same political interests, and will prefer the same candidates at the polls.'- Ante, at 10 (quoting Shaw, ___ U. S., at ___ (slip op., at 16)). This general- ization, as the Court recognizes, is -offensive and demeaning.- Ante, at 10.

In particular instances, of course, members of one race may vote by an overwhelming margin for one candidate, and in some cases that candidate will be of the same race. -Racially polarized voting- is one of the circum- stances plaintiffs must prove to advance a vote dilution claim. Thornburg v. Gingles, 478 U. S. 30, 56-58 (1986). Such a claim allows voters to allege that gerrymandered district lines have impaired their ability to elect a candidate of their own race. The Court emphasizes, however, that a so-called Shaw claim is -`analytically distinct' from a vote dilution claim,- ante, at 9 (quoting Shaw, 509 U. S., at ___ (slip op., at 21)). Neither in Shaw, nor in Hays, nor in the instant cases has the Court answered the question its analytic distinction raises: If the Shaw injury does not flow from an increased probability that white candidates will lose, then how can the increased probability that black candidates will win cause white voters, such as respond- ents, cognizable harm?

The Court attempts an explanation in these cases by equating the injury it imagines respondents have suffered with the injuries African Americans suffered under segregation. The heart of respondents' claim, by the Court's account, is that -a State's assignment of voters on the basis of race,- ante, at 13, violates the Equal Protection Clause for the same reason a State may not -segregate citizens on the basis of race in its public parks, New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958) (per curiam), buses, Gayle v. Browder, 352 U. S. 903 (1956) (per curiam), golf courses, Holmes v. Atlanta, 350 U. S. 879 (1955) (per curiam), beaches, Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam), and schools, Brown, supra.- Ante, at 9. This equation, however, fails to elucidate the elusive Shaw injury. Our desegregation cases redressed the exclusion of black citizens from public facilities reserved for whites. In this case, in contrast, any voter, black or white, may live in the Eleventh District. What respondents contest is the inclusion of too many black voters in the District as drawn. In my view, if respondents allege no vote dilution, that inclusion can cause them no conceivable injury.

The Court's equation of Shaw claims with our desegre- gation decisions is inappropriate for another reason. In each of those cases, legal segregation frustrated the public interest in diversity and tolerance by barring African Americans from joining whites in the activities at issue. The districting plan here, in contrast, serves the interest in diversity and tolerance by increasing the likelihood that a meaningful number of black representa- tives will add their voices to legislative debates. See post, at 16-17 (Ginsburg, J., dissenting). -There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.- Adarand Constructors, Inc. v. Pena, ante, at ___ (slip op., at 2) (Stevens, J., dissenting); see also id., at ___, n. 5. That racial integration of the sort attempted by Georgia now appears more vulnerable to judicial challenge than some policies alleged to perpetuate racial bias, cf. Allen v. Wright, 468 U. S. 737 (1984), is anomalous, to say the least.

Equally distressing is the Court's equation of tradi- tional gerrymanders, designed to maintain or enhance a dominant group's power, with a dominant group's decision to share its power with a previously under- represented group. In my view, districting plans violate the Equal Protection Clause when they -serve no purpose other than to favor one segment-whether racial, ethnic, religious, economic, or political-that may occupy a position of strength at a particular point in time, or to disadvantage a politically weak segment of the community.- Karcher v. Daggett, 462 U. S. 725, 748 (1983) (Stevens, J., concurring). In contrast, I do not see how a districting plan that favors a politically weak group can violate equal protection. The Constitution does not mandate any form of proportional representa- tion, but it certainly permits a State to adopt a policy that promotes fair representation of different groups. Indeed, this Court squarely so held in Gaffney v. Cummings, 412 U. S. 735 (1973): -[N]either we nor the district courts have a constitu- tional warrant to invalidate a state plan, otherwise within tolerable population limits, because it under- takes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.- Id., at 754.

The Court's refusal to distinguish an enactment that helps a minority group from enactments that cause it harm is especially unfortunate at the intersection of race and voting, given that African Americans and other dis- advantaged groups have struggled so long and so hard for inclusion in that most central exercise of our democ- racy. See post, at 4-6 (Ginsburg, J., dissenting). I have long believed that treating racial groups differently from other identifiable groups of voters, as the Court does today, is itself an invidious racial classification. Racial minorities should receive neither more nor less protection than other groups against gerrymanders. A fortiori, racial minorities should not be less eligible than other groups to benefit from districting plans the majority designs to aid them.

I respectfully dissent.

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