1010
Stevens, J., dissenting
The conclusion that race-conscious districting should not always be subject to strict scrutiny merely recognizes that our equal protection jurisprudence can sometimes mislead us with its rigid characterization of suspect classes and levels of scrutiny. As I have previously noted, all equal protection jurisprudence might be described as a form of rational basis scrutiny; we apply "strict scrutiny" more to describe the likelihood of success than the character of the test to be applied. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 452-453 (1985) (Stevens, J., concurring). Because race has rarely been a legitimate basis for state classifications, and more typically an irrational and invidious ground for discrimination, a "virtually automatic invalidation of racial classifications" has been the natural result of the application of our equal protection jurisprudence. Id., at 453. In certain circumstances, however, when the state action (i) has neither the intent nor effect of harming any particular group, (ii) is not designed to give effect to irrational prejudices held by its citizens but to break them down, and (iii) uses race as a classification because race is "relevant" to the benign goal of the classification, id., at 454, we need not view the action with the typically fatal skepticism that we have used to strike down the most pernicious forms of state behavior. See Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
erally require a conscious decision to draw its lines "just so" to ensure that the group is not a minority in the district population. It appears, however, that even when a district is placed "just so" in order to include a traditional community in which race does correlate with community interests (consider, for example, New York District 15, which is centered on Harlem), Justice Thomas would review that district with the same presumption of invidiousness with which we viewed the district in Gomil-lion v. Lightfoot, 364 U. S. 339 (1960). Cf. Miller, 515 U. S., at 944 (Ginsburg, J., dissenting) (noting that "ethnicity itself can tie people together" in communities of interest). Because the creation of such a district threatens neither the harms of Gomillion nor, I believe, any harms against which the Fourteenth Amendment was intended to protect, I cannot accept his conclusion.
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