The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_631/94_631.zd

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SUPREME COURT OF THE UNITED STATES
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Nos. 94-631, 94-797 and 94-929
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ZELL MILLER, et al., APPELLANTS
94-631               v.
DAVIDA JOHNSON et al.

LUCIOUS ABRAMS, Jr., et al., APPELLANTS
94-797               v.
DAVIDA JOHNSON et al.

UNITED STATES, APPELLANT
94-929               v.
DAVIDA JOHNSON et al.
on appeals from the united states district court
for the southern district of georgia
[June 29, 1995]

  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.