Reconsidering Shaw: the Miranda of race-conscious districting.

AuthorSaunders, Melissa L.

In Shaw v. Reno (Shaw I)(1) and its progeny, the United States Supreme Court relied upon the Equal Protection Clause of the Fourteenth Amendment to impose limits on race-conscious districting. In Shaw, the Court held that five North Carolina voters had stated a claim under the Equal Protection Clause in alleging that the state's congressional redistricting plan contained districts shaped so dramatically irregular that they could only be viewed as having been drawn along racial lines.(2) In a series of subsequent cases, the Court developed an elaborate framework for the adjudication of these Shaw claims.(3) Under that framework, the plaintiff's initial burden is to show, using direct or circumstantial evidence or a combination of both, that the state used race as the "predominant factor" in the design of the challenged district, "subordinat[ing] traditional race-neutral districting principles ... to racial considerations."(4) If the plaintiff makes this showing, the plan is subject to strict scrutiny and will be held unconstitutional unless the state demonstrates that its use of race was "narrowly tailored to achieve a compelling interest."(5) Applying this framework, the Court has declared unconstitutional a number of "safe" districts created for racial minorities after the 1990 census.(6)

From the beginning, critics have charged that the limitations on race-conscious districting set forth in Shaw and its progeny have no foundation in the Equal Protection Clause. Justice White has accused the Court of "imagining an entirely new cause of action"(7) that "the Constitution does not justify, much less mandate."(8) Justice Stevens has charged the Court with having invented a new right--a "right to color-blind districting"--that has "no basis" in the Constitution.(9) Justice Breyer has said that he "do[es] not believe that the Constitution embodies the doctrine that the majority enunciates."(10) With these criticisms have come predictable allegations that an activist Court has improperly invoked the Constitution to justify imposing its own policy preferences on the nation.(11)

These criticisms cannot easily be dismissed. While the Court's new limitations on race-conscious districting may make good sense as a matter of public policy,(12) the Court has yet to provide a convincing explanation for them as principles of constitutional law. Indeed, the Court seems deeply uncertain about the precise nature of the constitutional wrong that it is attempting to redress in these cases.(13) This basic conceptual uncertainty, together with a series of unexplained doctrinal quirks, has confused and confounded the state officials and lower-court judges who labor with the doctrine at the ground level. The Shaw doctrine, it seems, is not only inconsistent with the Court's traditional equal protection jurisprudence, but is also simply incomprehensible.

Despite these difficulties, Shaw's limitations on race-conscious districting seem destined to stay, at least for the foreseeable future. Ignoring the complaints of the dissenting Justices and a flood of critical commentary from the academy, the five-member majority that decided Shaw has now applied its rule in nearly a dozen cases.(14) While that majority remains deeply divided about Shaw's implications,(15) it shows no signs of abandoning its holding,(16) and even the dissenting Justices now concede that "the Court seems settled in its conclusion that racial gerrymandering claims such as these may be pursued."(17) That being the case, it is time, as Rick Pildes has said, for academic commentators to stop their "unproductiv[e]" efforts to convince the Court to overturn Shaw and concentrate instead on trying to understand it "on its own terms."(18)

In this Essay, I want to suggest one way in which we might begin to do that: by considering the possibility that the limitations on race-conscious districting set forth in Shaw and its progeny are much like the limits that Miranda v. Arizona(19) imposed upon police interrogation of suspects in custody. That is, they are a "prophylactic" measure that overprotects individual constitutional rights in some cases in order to ensure adequate protection of those rights across a range of cases. Prophylactic rules of this sort have been a familiar, if somewhat controversial, feature of the Court's work in other areas of constitutional law.(20) Both the law of constitutional criminal procedure and that of the First Amendment are full of rules that can be characterized as prophylactic in nature.(21) Nor are prophylactic rules unheard of in equal protection law--the strict scrutiny of classical equal protection doctrine, for example, can be seen as a prophylactic rule.(22) Shaw and its progeny, I suggest, are simply the latest example of a phenomenon that is pervasive in our constitutional law.

In suggesting that Shaw is like Miranda, I do not mean to damn it by association; I take no position on the longstanding debate over the Court's authority to craft overbroad prophylactic rules to enforce the Constitution.(23) But I do mean to suggest that those who believe Miranda to be a legitimate exercise of the Court's authority have no business arguing that Shaw is illegitimate and, conversely, that those who believe Shaw to be legitimate have no business arguing that Miranda is not. For this reason, the debate over Shaw's legitimacy could have important implications for the challenge to Miranda that looms on the Court's horizon.(24)

Part I of this Essay explains why Shaw's critics believe that the limitations that the case imposes on race-conscious districting lack any real basis in the Equal Protection Clause. The essential problem, in their view, is that Shaw permits courts to declare laws "unconstitutional" under the Clause in the absence of any proof that they subject any identifiable class of persons to a special disadvantage. Because a showing that the challenged law has such a "discriminatory effect" on a discrete class has always been thought to be an essential element of an equal protection claim, they assert, Shaw and its progeny represent a substantial extension of existing doctrine, an extension that the Court has failed even to acknowledge, much less to justify.

Part II of the Essay considers the possibility that the Court is using these cases to effect a major change in its equal protection jurisprudence: declaring that the Equal Protection Clause forbids the state to use race in dealing with people, absent truly extraordinary justification, even when it is not subjecting any identifiable class of persons to any special disadvantage. While I concede that this may explain the votes cast by some members of the Shaw majority, I conclude that it cannot explain the Shaw doctrine itself, as it is currently constituted.

Part III offers an alternative explanation for the Court's failure to require proof of special disadvantage to an identifiable class of persons in these cases. I argue that the Court is applying an overbroad per se rule much like the one it applies in Miranda. This Part begins with a brief review of Miranda's per se rule and the justification that the Court has given for it. It then seeks to demonstrate that Shaw and its progeny can be explained on similar grounds. So understood, I argue, the doctrine that the Court has constructed here is neither as radical nor as incoherent as its critics have maintained. But it is too imprecise to be workable, and the Court needs to rectify this problem if the doctrine is to realize its full potential. Part III offers some ideas about how this might be accomplished.

The Essay concludes with some brief thoughts on the implications of this reading of Shaw.

  1. THE PROBLEM WITH SHAW

    From the beginning, the Court has characterized Shaw's limitations on race-conscious districting as a routine application of longstanding principles of its equal protection jurisprudence. The Court's logic, first set forth in Justice O'Connor's opinion in Shaw I and reiterated in each of its progeny, goes as follows: The Equal Protection Clause requires courts to apply strict scrutiny to all laws that classify persons on the basis of their race.(25) An electoral districting plan that draws lines on the basis of race is a law that "classifies" persons by race.(26) It therefore follows inexorably that such a law must be subject to strict scrutiny.(27) To the extent that the lower courts have read the plurality opinion in United Jewish Organizations v. Carey(28) as suggesting that race-conscious districting plans adopted with the "benign" purpose of giving effect to minority voting strength are exempt from these principles,(29) they have erred.

    At first glance, this looks like a straightforward application of the "suspect classification" strand of traditional equal protection doctrine. If one looks beyond rhetoric to reality, though, it reveals itself to be a substantial--and unexplained--extension of that doctrine. Strict scrutiny, it must be remembered, is not a substantive rule of law that the Court has derived from the Equal Protection Clause, but a framework it has erected for the adjudication of equal protection claims, a framework designed to help courts identify violations of equal protection rights.(30) Traditional equal protection doctrine is based on the premise that a law must subject an identifiable class of persons to some special disadvantage in order to be challengeable under the Equal Protection Clause.(31) It is the imposition of this special disadvantage that must, according to the traditional understanding, be justified by reference to an adequate public purpose if the law is to survive an equal protection challenge.(32) When strict scrutiny is triggered,(33) this special disadvantage must be shown to be narrowly tailored to promote a compelling state interest.

    The difficulty with Shaw and its progeny, from the standpoint of traditional equal protection jurisprudence, is that these cases...

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