Cite as: 517 U. S. 952 (1996)
Souter, J., dissenting
See ante, at 958; ante, at 993 (O'Connor, J., concurring); cf. Miller, 515 U. S., at 928 (O'Connor, J., concurring). But the suggested qualification would fall short of eliminating the difficulty caused by the existing definition, for the uses of race to remedy past dilution or to hedge against future dilution are not the only legitimate uses of race that are covered, and threatened, by the overbreadth of the Shaw injury. This will become clear in examining the Court's efforts to solve its definitional problems by relying upon the degree to which race is used in defining the injury it discerns.
C
The Court's failure to devise a concept of Shaw harm that distinguishes those who are injured from those who are not, or to differentiate violation from remedy, is matched by its inability to provide any manageable standard to distinguish forbidden districting conduct from the application of traditional state districting principles and the plans that they produce. This failure, while regrettable, need not have occurred, for when the Court spoke in Shaw I of a district shape so "bizarre" as to be an unequivocal indication that race had influenced the districting decision to an unreasonable degree, Shaw I could have been pointing to some workable criterion of shape translatable into objective standards. Leaving Shaw's theoretical inadequacies aside, it would have been possible to devise a cause of action that rested on the expressive character of a district's shape, and created a safe harbor in the notion of a compact district objectively quantified in terms of dispersion, perimeter, and population. See Pildes & Niemi, 92 Mich. L. Rev., at 553-575. Had the Court followed this course, the districts whose grotesque shapes provoke the sharpest reaction would have been eliminated in racially mixed States, which would have known how to avoid Shaw violations and, thus, federal judicial intrusion. Shaw would have been left a doctrinal incongruity, but not an unmanageable one.
1057
Page: Index Previous 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 NextLast modified: October 4, 2007