Easing the spring: strict scrutiny and affirmative action after the redistricting cases: 2001 Cutler Lecture.

• Jurisdiction: United States
• Author: Karlan, Pamela S.
• Date: 01 March 2002

Strict scrutiny's rationale and its results stand in sharp tension with one another. The reason for skepticism about the government's use of race lies in our historical experience of the enslavement, exclusion, and unfair treatment of African-Americans, Asian-Americans, and Hispanics. But strict scrutiny was the consequence, not the cause, of the Supreme Court's decisions outlawing that discrimination. It wasn't until 1964, in McLaughlin v. Florida, (1) that the Court "both articulated and applied a more rigorous review standard to racial classifications." (2) By then, the Court had essentially finished the job of eradicating explicit racial classifications, and rational basis review had proven adequate for the task. For example, in Anderson v. Martin, (3) decided the same Term as McLaughlin, the Court unanimously struck down a Louisiana law requiring that a candidate's race be indicated on the ballot. In the context of early 1960s Louisiana, (4) the law's most foreseeable effect was to furnish "a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another," (5) that is, to reinforce racial bloc voting. In light of its conclusions about the law's racially discriminatory impact--and its suspicions about the legislature's discriminatory purpose (6)--the Court saw no way in which the provision was "reasonably designed to meet legitimate governmental interests in informing the electorate as to candidates." (7)

As for the results of strict scrutiny, its late arrival has had an ironic consequence. Strict scrutiny has been rather useless to the groups whose mistreatment prompted its adoption.

On the one hand, strict scrutiny is generally superfluous to the kind of equal protection case minorities have brought in the strict scrutiny era. These cases usually involve challenges to facially neutral laws. In such cases, to trigger strict scrutiny, plaintiffs must first prove that the government "selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." (8) But "if the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate," let alone a compelling, "governmental interest." (9) Thus, proof of an invidious motive by itself strips a law of its presumptive legitimacy. As a formal matter, once the plaintiff has shown a discriminatory purpose, the burden shifts to the defendants to prove that the law would have been enacted even without that purpose. (10) As a practical matter, though, proof of an invidious intent to injure blacks or Hispanics is the ballgame. (11) Few courts, having found that sort of malevolence, are likely to uphold a law anyway. (12)

On the other hand, strict scrutiny has proved invaluable in the assault on race-conscious affirmative action. That is certainly where the Court usually deploys it. (13) Of course, it can be hard to separate a justice's view on the appropriate standard of review from her view on the underlying merits: Is skepticism about affirmative action the cause or the consequence of applying strict scrutiny to all racial classifications? Still, it seems pretty clear that the level of scrutiny the Court applies to race-conscious affirmative action is closely correlated with the outcome it reaches. It is not simply coincidence that the Court upheld the affirmative action programs in Metro Broadcasting (14) and Fullilove, (15) where it applied a more lenient test that asked whether the challenged measures were substantially related to the achievement of an important government objective, but that it expressed serious doubts about the set-aside program at issue in Adarand Constructors, Inc. v. Pena, (16) where it squarely held that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny." (17)

One of the striking features of the Supreme Court's docket is how few classic affirmative action cases it has taken over the years. This has left the lower courts with relatively little guidance. Not surprisingly, in the years since Adarand, they have reached contradictory results. (18) My own sense is that, with a little help from the parties, (19) the Supreme Court has been more than happy to stay out of the fray.

The Supreme Court, however, has not been entirely absent from the controversy over governmental uses of race. Far from it. Over the past decade, the Supreme Court has addressed the question repeatedly, in the context of race-conscious redistricting. (20) Its decisions, which are all over the map in both the literal and figurative senses of the phrase, suggest a nuanced understanding both of what triggers and of what satisfies strict scrutiny. The redistricting cases may flesh out the Court's expressed wish in Adarand--"to dispel the notion that strict scrutiny is `strict in theory, but fatal in fact.'" (21) They suggest that strict scrutiny may be strict in theory, but rather pliable in practice.

The first part of this Article explores the evolution of strict scrutiny in the Court's race-conscious redistricting cases. It shows how the Court has become less trigger-happy in invoking strict scrutiny in the first place: under the predominant purpose standard, not every use of race renders a plan constitutionally suspect. Moreover, the Court has recognized an important role for the political branches' judgments about how best to safeguard equality in its articulation of what constitutes a compelling state interest. Having described some central aspects of the redistricting cases, the second part of this Article turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education. In previous work, I have explained my skepticism about a trans-substantive approach: the use of race in the redistricting process has seemed distinctive to me in ways that made it both "misguided and incoherent" to use general equal protection doctrine there. (22) But I lost that battle. The Court seems to have embraced the idea that, when it comes to the government's use of race, there is one equal protection clause. It is worth taking the Court at its word, at least to see where that can lead us.

1. THE NOT-STRICTLY STRICT SCRUTINY OF THE REDISTRICTING CASES

   In the three decades between the Supreme Court's entrance into the political thicket in Baker v. Carr (23) and its decision in Shaw v. Reno, (24) the Court developed a unique set of equal protection rules for cases involving redistricting. (25) Some of those rules--for example, one person, one vote--have no real counterpart elsewhere in equal protection. Others--for example, the distinctively tolerant approach to political gerrymandering--permit the government to take actions in the redistricting process that would be forbidden elsewhere. When it came to race and representation, the Court's qualitative dilution doctrine has been explicitly group-oriented rather than individualistic.

   The one significant intersection of general equal protection doctrine with racial vote dilution occurred in the Court's 1980 decision in City of Mobile v. Bolden, (26) where the Court held that Washington v. Davis (27) required that minority plaintiffs prove that the defendant jurisdiction had adopted or maintained its election system precisely because of its dilutive impact on minority voters. Two years later, Congress amended section 2 of the Voting Rights Act of 1965 in order to eliminate the purpose requirement (of course as a matter of statutory, rather than constitutional law), (28) and in Thornburg v. Gingles, (29) the Supreme Court adopted an expansive construction of amended section 2 that focused on the question whether minority voters had an equal opportunity to elect the candidates of their choice. In areas with significant racial bloc voting--and this includes much of the South and Southwest, as well as some northern cities--minority voters can elect their preferred candidates only from districts where they form a substantial share, often a majority or supermajority, of the electorate. Thus, the standard remedy for a section 2 violation is to create some number of majority-black or majority-Hispanic districts.

   As a result of amended section 2, when the post-1990 round of decennial redistricting rolled around, states faced a substantial prospect of liability if they failed to draw majority-minority districts in areas with politically cohesive minority populations. Those jurisdictions required to seek federal preclearance under section 5 of the Acts (30) confronted strong pressure from the Department of Justice as well. In several states, including North Carolina and Georgia (whose plans were to end up at the Supreme Court), the Department rejected the states' proposals until they created more majority-nonwhite districts. (31)

   Redistricting has always been an unseemly process, nature red in tooth and claw, but a combination of features in the post-1990 round produced unseemly results. The Democratic politicians who controlled redistricting within many jurisdictions with large minority populations, particularly in the South, faced an exquisitely difficult problem: in the face of declining support among white voters, they needed both to preserve the seats of incumbent white legislators and to create some new majority-minority districts. (32) The technique they used, aided by computer technology and detailed census data that allowed far more fine-tuning of district lines than had previously been possible, was to painstakingly divvy up populations of black or Hispanic voters, often block by block, so as to create new majority-minority districts while leaving sufficient numbers of...