Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno

Shaw is no doubt a major opinion that attempts to define limits on the use of racial or ethnic classifications in electoral redistricting. The main thrust of this article is to assess the critical question of whether Shaw renders unconstitutional the type of race-conscious realignment of electoral configurations that have given meaning to the voting rights reforms of the past two decades. In making this assessment, we try to ascertain exactly how the Court has limited the use of race-conscious districting, and we try to determine whether there is any jurisprudential coherence to the Court’s latest confrontation with the law and politics of race. Our conclusion is that Shaw is as important for what it does not say as for what it does: its inconclusive resolution of the ultimate issue whether race may ever be justifiably relied upon in redistricting reaffirms the messy jurisprudence of compromise that has guided the center of the Court since Regents of the University of California v. Bakke. The heart of this jurisprudence is a never quite satisfactory accommodation between deeply individualistic notions of appropriate treatment and a politically charged conception of the representational legitimacy of principal institutions in our society.