First Among Equals (23 page)

These two changes in the Court's composition suggested that
Metro Broadcasting
would be short-lived. After all, two judicial liberals had been replaced by two judicial conservatives, or so it seemed.

As it happened, David Souter soon enough began to vote in a fashion not unlike Justice Brennan. Justice Thomas, however, bore out the hopes of his patron, casting votes almost exactly opposite to Marshall's. The subsequent changes in the Court's composition did not alter the single-vote but all-important shift to the right, insofar as race cases are concerned. Ruth Bader Ginsburg took Justice Blackmun's seat in 1993, and Stephen Breyer replaced Justice White in 1994.

So it was that in 1995 Justice Thomas's vote made the difference in the watershed case of
Adarand v. Peña.
The case involved a federal program authorizing a racial preference in subcontracting on highway projects. Adarand, a white-owned construction company, mounted an equal-protection challenge, losing in lower courts applying the more relaxed standard of
Metro Broadcasting.
In her opinion for the Court in
Adarand,
however, Justice O'Connor flatly overruled
Metro Broadcasting.
In the process, she reaffirmed and extended the legal doctrine she had announced in
Croson,
making clear that any race-based measure used by any government, federal or state, must be subjected to the most demanding standard of review, strict scrutiny.

As the year 2000 closed, it had become clear that the Rehnquist Court had resorted, at least for a time, to remaining quiet on issues of affirmative action. But even then, the Court's next encounter with the issue was brewing. Arguably the biggest case in recent years was
Hop-wood v. University of Texas,
an equal-protection challenge to the race-based admissions policy used by the University of Texas Law School. The U.S. Court of Appeals for the Fifth Circuit not only struck down the policy but held that the diversity rationale advanced by the school—consistent with Justice Powell's opinion in
Bakke
—could not suffice as a compelling interest under strict scrutiny. Remarkably, the Supreme Court in 1997 declined to review the Fifth Circuit's decision. But the Court took up the issue of diversity in higher education half a decade later, in the context of the University of Michigan's law school and undergraduate admissions programs. In
Grutter v. Bollinger,
a sharply divided Court upheld the use of race as a plus factor to achieve diversity in the classroom. Not surprisingly, Justice O'Connor was at the forefront, writing the opinion for the Court. As if to make clear who the guiding forces were in shaping the Court's affirmative action jurisprudence over the past quarter century, Justice O'Connor relied heavily on Justice Powell's opinion in
Bakke,
and in that respect the Court's holding in
Grutter,
for all the fanfare it surely will receive, is quite consistent with the Court's earlier cases. But the importance of
Grutter
should not be underestimated, for a majority of the Court expressly held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”

Still, the Court's holding should be viewed as limited, for, in a companion case,
Gratz v. Bollinger,
the Court invalidated the Michigan undergraduate affirmative action program by a 6–3 margin. That program assigned twenty points to applicants based solely on their minority status, and the Court found such a program too crude to survive strict scrutiny. Taken together, these cases stand for the proposition that schools may use racial classifications to achieve classroom diversity, but must be very careful in doing so.

Justice O'Connor was in charge. Like Lewis Powell before her, she controlled the law of affirmative action. And consistent with her jurisprudence in other areas of the law, there would be no absolutes. She would not categorically bar the consideration of race. But she would not categorically allow it either. Great care and careful tailoring would be required of the state.

Chapter Nine

C
OUNTING BY
R
ACE
II:

G
ERRYMANDERING AND
V
OTING

A
S WITH AFFIRMATIVE ACTION,
the 1990s also brought greater clarity to the law of race and voting. The great decisions of the 1960s upholding Congress's power as exercised in the Voting Rights Act had given way to a series of halting, tentative decisions suggesting, once again, uncertainty on the part of the Court. And uncertainty carried with it lack of consensus.

The new battleground was congressional redistricting. In the wake of the 1990 Census, states covered by the provisions of the Voting Rights Act requiring advance clearance by the Justice Department of changes in election law and procedures began the process of submitting their new congressional districting plans to the Justice Department for review. The Justice Department's Civil Rights Division asked forthrightly for the first time whether the plans created appropriate opportunities for African-American candidates to be elected to seats in the House of Representatives.

This was ironic. The Justice Department under Ronald Reagan had worked hard to promote the ideal of racial neutrality in government decision-making. But under President George Bush (the elder), policy changed. Led by a delightful, charming New York lawyer, John Dunne, the Bush I Justice Department pushed the race envelope. It demanded, in effect, set-aside districts. It did so through its aggressive interpretation of the Voting Rights Act. As Dunne saw it, the Voting Rights Act
required
covered states to maximize the opportunity for African Americans to elect a minority representative through creative, case-sensitive line-drawing of district lines.

I had serious doubts about all this. But Attorney General Dick Thornburgh supported the Civil Rights Division's race-conscious policies, and given the organization of the Justice Department, it was not within my power to call a halt to it. Unless the legal issue was one involving an appeal from a lower federal court to a court of appeals or an effort to seek review in the Supreme Court, the call was not for the solicitor general to make.

The issue was not unfamiliar to me, though, even if the responsibility belonged to others in the Justice Department. In the early 1970s I had served as a law clerk on the old Fifth Circuit (a court of appeals whose jurisdiction at the time ranged from Florida to Texas). We saw from time to time questionable election practices coming out of the Deep South. I understood full well that race could play a decidedly negative role in elections, including practices designed to manipulate the process unfavorably to blacks— practices that Congress tried to outlaw. I had written a law-review article that argued in favor of federal courts having the power, when necessary to vindicate voting rights, to actually overrule an election and order a new one.

This Justice Department approach raised squarely a question of “benign” or “inclusive” line-drawing on grounds of race. It was the
Bakke
issue—whether lines can be established on grounds of race in order to be more inclusive of minorities—applied to the setting of congressional redistricting. The Supreme Court had never faced this issue. It was a Republican-controlled Civil Rights Division that had brought the issue to the fore through the demand for black-controlled districts.

The initial battle in this new debate took place in North Carolina. Due to its population growth during the prior decade, North Carolina was entitled to an additional House seat. The state legislature agreed upon a redistricting plan. But the Civil Rights Division then rejected the plan during the Justice Department pre-clearance process. The division decided that a new district, the North Carolina Twelfth, could be created in such a manner as to facilitate the election of the state's first elected black member of the House since Reconstruction. North Carolina resisted, but the Justice Department held firm. The Civil Rights Division advanced a proposed district that would satisfy the traditional criteria used by legislatures in drawing district lines, including such factors as compactness, contiguity, and respect for traditional political boundaries (such as county and city lines).

The Justice Department's computer-generated plan neglected to consider another traditional criterion: protecting the incumbent members. Under the plan, incumbent protection would have been compromised, since at least one sitting member of the state's congressional delegation would likely have lost his seat. This outcome was unacceptable to the power brokers in Raleigh. They drew up their own plan in an attempt to satisfy all parties. Yet this state-sponsored plan, also computer generated, spawned a course of litigation that continued for a decade. The reason was obvious on the face of the plan: The minority-favored district was a bizarrely shaped oddity that differed widely from its eleven counterparts across the state.

Robinson Everett, a professor at the Duke Law School, initiated the legal challenge in the early 1990s. Offended by what he considered a blatant, race-based gerrymander, this former judge, who had been appointed chief judge of the United States Court of Appeals for Military Review by President Carter, broached the subject with another professor at the law school, Melvin Shimm. (Both were professors of mine when I attended the Duke Law School from 1970 to 1973.) Soon Ruth Shaw, widow of a Duke sociology professor, was on board. Shaw and Shimm lived in Durham. Neither was a southerner. Shaw hailed from Minnesota, Shimm from New York City. Both were educated outside the South. Both were Democrats. Shimm, in fact, had been a dues-paying member of the NAACP.

They had lost their congressman in the wake of the early 1990s redistricting. Now, suddenly, their representative was a gentleman named Mel Watt. Congressman Watt wasn't from Durham either. He hailed from Charlotte, located more than 150 miles southwest, down Interstate 85. Charlotte was almost on the South Carolina border, close to the North Carolina mountains. Durham, by contrast, was in the northern Piedmont, not far from the Virginia line. It was in the middle of the Research Triangle, a booming educational and research juggernaut. Tobacco had long been in decline, and “research and development” was thriving, carried out by three major universities within a thirty-mile radius. Charlotte was growing too, but it was a major financial center, one of the largest money centers outside of Wall Street.

The district lines fashioned by the incumbent-conscious North Carolina legislature were odd in the extreme. The district tore asunder traditional political boundaries, snaking along the narrow corridors of Interstate 85 as it moved southwest from the Research Triangle to the predominantly African-American neighborhoods of Charlotte. Robinson Everett, Ruth Shaw, and Mel Shimm not only felt disenfranchised, they were outraged at the grotesque, bizarre shape of the Twelfth District. It crept along Interstate 85 from Durham to Charlotte, taking in predominantly black neighborhoods along the way. As one wag put it at the time, “If you're driving down Interstate 85 with your car doors open, you'll kill half the constituents.”

To Robinson Everett, this was profoundly wrong. Not only was the gerrymander race-based, but Durham's sense of community had been compromised. The member of Congress representing Durham had always been attuned to community interests and needs, but that no longer was true.

When American Airlines inaugurated trans-Atlantic service from Raleigh-Durham to London in 1992, public officials and aspirants to public office turned out at the regional airport to celebrate. But Durham's new congressman, Mel Watt, was a no-show. He didn't seem to bother much about this part of his district. His base was Charlotte, and the black community more specifically. Airline service to London was a huge irrelevancy to the world of the black Piedmont situated along the great interstate highway. So on this notable occasion, the congressman stayed in Charlotte while the Research Triangle celebrated the thought of flying direct to London.

Gerrymandering had operated to exclude Shaw and Shimm. Their congressman was one in name only. From their perspective, the congressman never wrote, never visited, and, from appearances, simply didn't care. Shaw and Shimm, like many others, felt that the redistricting plan had abandoned them. And the sole reason for the abandonment, as they saw it, was race.

They went to court. With Ruth Shaw as lead plaintiff and with the Clinton administration embracing and defending the Bush-inspired policies, the case of
Shaw v. Reno
(1993) was born. It challenged the gerrymander as race based. Drawing on principles articulated by Justice Powell in
Bakke
and developed through the burgeoning case law on race, the plaintiffs maintained that the gerrymander was an unconstitutional deprivation of the equal protection of the laws. This was line-drawing by race in order to ensure the election of an African-American representative. As traditional liberals, Shaw and Shimm shared the sentiments of outrage expressed by Warren Court veteran Justice Douglas in the
DeFunis
case shortly before his retirement. Race had become a cutting-edge issue in elections.

The judiciary was in an awkward position. Traditionally, federal courts had taken a hands-off approach to gerrymander-based challenges. To the victor go the spoils, and if those in charge of redistricting reconfigured boundary lines so as to maximize the electoral opportunities of the party in power, so be it. There was nothing the courts could, or should, do.

This was, in Justice Felix Frankfurter's formulation in
Colegrove v. Green
(1946), a “political thicket” he had warned the Warren Court not to enter. Standards would be extraordinarily hard for the courts to articulate in response to charges that district lines were improperly drawn or that legislative districts were malapportioned. But the Warren Court had been untroubled. Ploughing under well-settled law, the Court under Chief Justice Warren held in a series of decisions that the Constitution's demand of “equal protection” required a standard of “one-person, one-vote.” No overrepresentation of rural districts, the norm in many states, would be allowed. The Constitution, as understood by the High Court under Earl Warren, demanded equality. This was the mandate even though history and tradition had protected such malapportioned schemes as necessary to carry out another vision of the public interest—to ensure that all geographic areas and economic interests enjoyed representation in the electoral process (in the same fashion as the malapportioned United States Senate with each state, regardless of population, allotted two senators).