Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction.

• Author: Gerken, Heather K.
• Position: Review

COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION. By J. Morgan Kousser. Chapel Hill: University of North Carolina Press. 1999. Pp. x, 590. $29.95.

J. Morgan Kousser, professor of history and social science at the California Institute of Technology, is an unusual academic. He enjoys the respect of two quite different groups -- historians and civil rights litigators. As a historian, Kousser has written a number of important works on the American South in the tradition of his mentor, C. Vann Woodward, (1) including a foundational book on southern political history, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910. Many of his writings have become seminal texts among election law scholars. (2) Kousser has also used his historical skills to provide crucial assistance to civil rights plaintiffs in numerous voting cases, including Mobile v. Bolden, Shaw v. Hunt, and Bush v. Vera. (3)

Like the work of C. Vann Woodward, Kousser's is the scholarship of the path not taken. He seeks to show that the political and racial climate at various points in our history was more fluid than we imagine in order to persuade us that the path we eventually took was not foreordained, and that changes in institutional structures or legal rules might have led to dramatically different results. His historical scholarship is thus forward-looking -- the past provides a means to chart our course for the future.

Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction is Kousser's most recent effort to pursue his noble dream: "tell[ing] the truth and do[ing] good at the same time." (4) Its self-proclaimed goal is to employ rigorous historical analysis to uncover what Kousser believes to be the partisanship, racism, and hypocrisy underlying the Supreme Court's racial gerrymandering decisions -- Shaw v. Reno and its progeny. (5) Throughout the book, Kousser insists that scholars abandon their isolationist impulses and join him in fighting the good fight to eliminate Shaw. One can only admire the passion and intellectual firepower Kousser brings to his role as academic warrior, his choice of interdisciplinary scholarship as a weapon, and the battles he has chosen to wage.

Kousser's attack on Shaw has two prongs. In the first part of the book, he marshals powerful historical research to show why Shaw fails to take into account past and present realities. The second half of the book contains Kousser's direct attack upon Shaw. It consists of a wide-ranging series of challenges to the Supreme Court's equal protection decisions, all of which are designed to show us that Shaw reflects a racist, pro-Republican agenda.

Ironically, the first half of Colorblind Injustice, which largely involves an indirect challenge to Shaw, is far more successful than the direct attack contained in the second half. As Part I of this Review explains, the first section of the book offers a good example of the political use to which history can be put. The first six chapters demonstrate the intricate ways in which race is refracted and reflected in American politics and the powerful effect legal rules and political institutions have upon race relations. By revealing the many complexities the Shaw decisions elide, Kousser's historical research provides a weighty challenge to the formalist reasoning offered by Shaw and its progeny.

Part II argues that Kousser's direct challenge to Shaw in the second half of Colorblind Injustice fails in large part because he does not adequately articulate or defend the normative theory undergirding his challenge. The omission is a deliberate one, as Kousser believes that it is "facts, not theories, that really matter" (p. 504 n.33). As Section II.A explains, however, the attack Kousser levies is necessarily a normative one. Because he fails to defend his normative premises, however, they are difficult to discern, obvious criticisms of those assumptions go unanswered, and he never engages directly with the difficult normative questions Shaw raises. Section II.B argues that even if Kousser is merely trying to downplay, rather than eliminate, normative argument in equal protection, that undertaking is misguided. Indeed, decisionmaking that is not anchored to a clear normative principle lends itself to a different variant of the formalism Kousser decries.

Finally, Part III briefly reflects upon the language Kousser uses to advocate his cause. It criticizes Kousser's fiery rhetoric on purely instrumental grounds. While there is certainly much to be said for introducing righteous indignation into this debate, Kousser is unlikely to achieve his political aims with the language he has chosen. This Review concludes by noting that this book undoubtedly should be read by anyone interested in the ongoing debate about Shaw v. Reno and its progeny, but it is unlikely to change anyone's mind.

1. THE STRUGGLE OF MEMORY AGAINST FORGETTING

   The first half of Colorblind Injustice provides a fine example of the use of history to pursue political aims. Its goal is to show why the Supreme Court should abandon the Shaw doctrine, which allows majority-minority districts to be invalidated under the Equal Protection Clause, depending on how they are drawn. (6) By ignoring the significant role race plays in our present and recent past, Kousser argues, the Shaw doctrine threatens the fragile gains made by racial minorities during the Civil Rights Movement. (7) Unless the Court "get[s] the history right," Kousser writes, it "cannot get the equal protection clause right" (p. 456).

   Colorblind Injustice thus takes its place within an important scholarly tradition: "the struggle of memory against forgetting," to borrow Milan Kundera's lovely phrase. (8) Those who subscribe to this tradition do so for forward-looking reasons; they seek "to make connections with the past in order to illuminate the problems of the present and the potential of the future." (9) History is worth fighting over because the past is "used to sanction or sanctify authority" (10) and provides the means by which we define ourselves and our community. (11) Thus, history "doesn't just reflect; it provides a forum for readjudicating power and interests." (12)

   Like Kousser, legal scholars in this tradition fear the Rehnquist Court's resort to abstract principles in equal protection cases because it allows the Court to ignore how these principles are refracted and distorted when applied in the real world. (13) Recognizing that it is especially "[i]n the freighted area of race and public policy" that "abstract principles [can] founder on uncomfortable facts," (14) many of these scholars praise the Warren Court for its "rediscovery of the inseparable connection between political culture and political equality." (15)

   A. The Role of Bright-Line Rules in the Courts' Voting Jurisprudence

   Concerns about acontextual decisionmaking are especially apt in the voting rights context. A rigid adherence to bright-line rules seems to be the usual reaction of courts to the difficulties involved in conceptualizing how to allocate political power fairly among voters, the tensions between traditional tenets of liberalism and the aggregative aspects of voting, and the types of judgments necessary to guarantee racial minorities a full opportunity to participate in the political process. (16) Courts shy away from nuanced, contextual analysis and qualitative evaluation, preferring instead formulaic approaches that require only quantitative judgments. Whether one thinks the courts' resort to formalism stems from a healthy fear of traveling farther into the political thicket or is simply an ineffective attempt to dodge these questions, it is hard to deny its presence in voting rights jurisprudence. (17)

   Bright-line rules can, of course, provide sensible proxies for achieving broader substantive aims. The problem in voting rights jurisprudence, however, is that too often courts have stopped treating these bright-line rules as means to an end; the rules have become ends unto themselves. A resort to this variant of "formalism" inevitably results in the mindless application of these rules to historical and normative contexts where they do not fit. The average judge prefers such a formal approach to probing the rule's normative underpinnings or factual assumptions and evaluating whether they still hold in the case before her.

   One example of this trend outside of the Shaw line of cases is the courts' section 2 jurisprudence. Section 2 of the Voting Rights Act prohibits racial vote dilution. (18) In the early stages of the doctrine's development, courts assessed whether racial minorities had a fair opportunity to participate in the political process by examining a wide range of historical and qualitative concerns. These came to be known as the "Senate factors" after they were endorsed in a Senate report accompanying the 1982 amendments to section 2. (19)

   Over the years, however, courts resolving section 2 claims have largely abandoned the qualitative analysis required by the Senate factors. Indeed, in 1986, the Supreme Court effectively instructed lower courts to disregard those qualitative measures and focus instead on the three Gingles preconditions, (20) mechanical proxies for assessing whether racial minorities' potential voting strength has been undermined. Thus, even without some qualitative proof of dilution, plaintiffs were very likely to persuade a court to invalidate a redistricting scheme as long as they succeeded in satisfying the Gingles preconditions. (21)

   While the Supreme Court's decision in Johnson v. DeGrandy (22) seemed to breathe new life into the Senate factors, it failed to deter the courts' marked proclivity for mechanical, quantitative rules. Although the Court specifically reminded courts to pay attention to the Senate factors, (23) it offered a new standard for...