Bush v. Vera, 517 U.S. 952, 75 (1996)

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Cite as: 517 U. S. 952 (1996)

Souter, J., dissenting

never has held that race-conscious state decisionmaking is impermissible in all circumstances"); cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 520-521 (1989) (Scalia, J., concurring in judgment) (criticizing the majority for rejecting a strict principle of colorblindness). Indeed, the very fear that led to the creation of the Shaw cause of action was that racial concerns were taking too heavy a toll on districting practices that had evolved over the years through the political process. Shaw I, 509 U. S., at 644-649. Justice O'Connor, moreover, has made it obvious that race has a legitimate place in districting, id., at 642 ("[R]ace-conscious redistricting is not always unconstitutional"); Miller, 515 U. S., at 928-929 (O'Connor, J., concurring); ante, at 993 (O'Connor, J., concurring), that the intentional creation of majority-minority districts is not forbidden by Shaw, Miller, supra, at 928 (O'Connor, J., concurring) (districts may be permissible "even though race may well have been considered in the redistricting process"); ante, at 990- 992 (O'Connor, J., concurring), and that Shaw was aimed at only the exceptional district, 515 U. S., at 928-929 ("Application of the Court's standard does not throw into doubt the vast majority of the Nation's 435 congressional districts"). Of the present Court majority, only Justices Scalia and Thomas are on record as concluding that any intentional creation of a majority-minority district is a forbidden racial gerrymander. Ante, at 1001 (Thomas, J., concurring in judgment).

Since a radical transformation of the political selection process in the name of colorblindness is out of the question, the Court's options for dealing with Shaw's unworkability are in truth only these: to confine the cause of action by adopting a quantifiable shape test or to eliminate the cause of action entirely. Because even a truncated Shaw would rest on the untenable foundation I have described, and the supposed, expressive harm Shaw seeks to remedy is unlikely


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