Shaw v. Hunt, 517 U.S. 899, 27 (1996)

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Cite as: 517 U. S. 899 (1996)

Stevens, J., dissenting

tional claim before us ultimately depends for its success on little more than speculative judicial suppositions about the societal message that is to be gleaned from race-based districting. I know of no workable constitutional principle, however, that can discern whether the message conveyed is a distressing endorsement of racial separatism, or an inspiring call to integrate the political process. As a result, I know of no basis for recognizing the right to color-blind districting that has been asserted here.

Even if there were some merit to the constitutional claim, it is at least clear that it requires the recognition of a new constitutional right. For that very reason, the Court's suggestion that pre-Shaw, race discrimination precedent somehow compels the application of strict scrutiny is disingenuous. The fact that our equal protection jurisprudence requires strict scrutiny of a claim that the State has used race as a criterion for imposing burdens on some persons but not others does not mean that the Constitution demands that a similar level of review obtain for a claim that the State has used race to impose equal burdens on the polity as a whole, or upon some nonracially defined portion thereof. As to the latter claim, the State may well deserve more deference when it determines that racial considerations are legitimate in a context that results in no race-based, unequal treatment.

To take but one example, I do not believe that it would make sense to apply strict scrutiny to the Federal Government's decision to require citizens to identify their race on census forms, even though that requirement would force citizens to classify themselves racially, and even though such a requirement would arguably convey an insidious message about the Government's continuing belief that race remains relevant to the formulation of public policy. Of course, if the Federal Government required only those persons residing in

has shown either that he has uniquely been denied an otherwise generally available benefit on account of race, or that anyone else has.


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