1058
Souter, J., dissenting
The Court, however, rejected this opportunity last Term in Miller v. Johnson, supra, when it declined to contain Shaw by any standard sufficiently quantifiable to guide the decisions of state legislators or to inform and limit review of districting decisions by the courts. The Court rejected shape as a sufficient condition for finding a Shaw violation, or even a necessary one. 515 U. S., at 915. See also Issacharoff, The Constitutional Contours of Race and Politics, 1995 S. Ct. Rev. 45, 56 (hereinafter Issacharoff, Constitutional Contours) ("Miller is rather categorical in its refusal to limit the application of the equal protection clause to bizarre districts alone"). Instead, it recharacterized the cause of action in terms devised in other cases addressing essentially different problems, by proscribing the consideration of race when it is the "predominant factor motivating the legislatur[e]," 515 U. S., at 916, or when the use of race is "in substantial disregard of customary and traditional districting practices," id., at 928 (O'Connor, J., concurring).
As a standard addressed to the untidy world of politics, neither "predominant factor" nor "substantial disregard" inspires much hope.7 It is true of course that the law rests certain other liability decisions on the feasibility of untangling mixed motives, and courts and juries manage to do the untangling. See, e. g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (employee's burden to show that constitutionally protected conduct is a "substantial factor" in
7 See Cannon v. North Carolina State Bd. of Ed., 917 F. Supp. 387, 391 (EDNC 1996) (describing this "difficult area of the law" and predicting that it will "gain better definition by reason of an imminent decision by the Supreme Court of the United States [in Shaw II ]"); Briffault, Race and Representation After Miller v. Johnson, 1995 U. Chi. Legal Forum 23, 50 (1995) ("[I]t is unclear what work the adjectives 'predominant' and 'overriding' do in the Supreme Court's test"); Karlan, Post-Shaw Era 287 (Miller "further unsettled the already unclear roadmap" of Shaw I ); Issacharoff, Constitutional Contours 60 ("[T]he Court's facile reliance on standards of causation vaguely reminiscent of tort law does nothing to defer confronting the hard issue of acceptable standards of conduct").
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