United Jewish Organizations of Williamsburgh, Inc. v. Carey

Mr. Justice Brennan,

concurring in part.

I join Parts I, II, and III of Mr. Justice White's opinion. Part II effectively demonstrates that prior cases firmly estab*169lish the Attorney General’s expansive authority to oversee legislative redistricting under § 5 of the Voting Rights Act. See, e. g., Georgia v. United States, 411 U. S. 526, 532 (1973); Allen v. State Board of Elections, 393 U. S., 544, 566, 569 (1969). Part III establishes to my satisfaction that as a method of securing compliance with the Voting Rights Act, the 65% rule applied to Brooklyn in this instance was not arbitrarily or casually selected. Yet, because this case carries us further down the road of race-centered remedial devices than we have heretofore traveled—with the serious questions of fairness that attend such matters—I offer this further explanation of my position.

The one starkly clear fact of this case is that an overt racial number was employed to effect petitioners’ assignment to voting districts. In brief, following the Attorney General’s refusal to certify the 1972 reapportionment under his § 5 powers, unnamed Justice Department officials made known that satisfaction of the Voting Rights Act in Brooklyn would necessitate creation by the state legislature of 10 state assembly and senate districts with threshold nonwhite populations of 65%. Prompted by the necessity of preventing interference with the upcoming 1974 election, state officials complied. Thus, the Justice Department’s unofficial instruction to state officials effectively resulted in an explicit process of assignment to voting districts pursuant to race. The result of this process was a countywide pattern of districting closely approximating proportional representation. While it is true that this demographic outcome did not “underrepresent the white population” throughout the county, ante, at 154—indeed, the very definition of proportional representation precludes either underrepresentation or over-representation—these particular petitioners filed suit to complain that they have been subjected to a process of classification on the basis of race that adversely altered their status.

If we were presented here with a classification of voters *170motivated by racial animus, City of Richmond v. United States, 422 U. S. 358, 378 (1975); Wright v. Rockefeller, 376 U. S. 52, 58 (1964); Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960), or with a classification that effectively downgraded minority participation in the franchise, Georgia v. United States, supra, at 534; Whitcomb v. Chavis, 403 U. S. 124, 144 (1971), we promptly would characterize the resort to race as “suspect” and prohibit its use. Under such circumstances, the tainted apportionment process would not necessarily be saved by its proportional outcome, for the segregation of voters into “separate but equal” blocs still might well have the intent or effect of diluting the voting power of minority voters. See, e. g., City of Richmond v. United States, supra, at 378; Wright v. Rockefeller, supra, at 53-54; infra, at 172-173. It follows, therefore, that if the racial redistricting involved here, imposed with the avowed intention of clustering together 10 viable nonwhite majorities at the expense of preexisting white groupings, is not similarly to be prohibited, the distinctiveness that avoids this prohibition must arise from either or both of two considerations: the permissibility of affording preferential treatment to disadvantaged nonwhites generally, or the particularized application of the Voting Rights Act in this instance.

The first and broader of the two plausible distinctions rests upon the general propriety of so-called benign discrimination: The challenged race assignment may be permissible because it is cast in a remedial context with respect to a disadvantaged class rather than in a setting that aims to demean or insult any racial group. Even in the absence of the Voting Rights Act, this preferential policy plausibly could find expression in a state decision to overcome nonwhite disadvantages in voter registration or turnout through redefinition of electoral districts—perhaps, as here, through the application of a numerical rule—in order to achieve a *171proportional distribution of voting power. Such a decision, in my view, raises particularly sensitive issues of doctrine and policy. Unlike Part IV of Me. Justice White's opinion,1 I am wholly content to leave this thorny question until another day, for I am convinced that the existence of the Voting Rights Act makes such a decision unnecessary and alone suffices to support an affirmance of the judgment before us.

I begin with the settled principle that not every remedial use of race is forbidden. For example, we have authorized and even required race-conscious remedies in a variety of corrective settings. See, e. g., Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 25 (1971); United States v. Montgomery County Bd. of Education, 395 U. S. 225 (1969); Franks v. Bowman Transp. Co., 424 U. S. 747, 772-774 (1976); ante, at 160. Once it is established that circumstances exist where race may be taken into account in *172fashioning affirmative policies,2 we must identify those circumstances, and, further, determine how substantial a reliance may be placed upon race. If resort to the 65% rule involved here is not to be sanctioned, that must be because the benign use of such a binding numerical criterion (under the Voting Rights Act) generates problems of constitutional dimension that are not relevant to other, previously tolerated race-conscious remedies. As a focus for consideration of what these problems might or might not be, it is instructive to consider some of the objections frequently raised to the use of overt preferential race-assignment practices.

First, a purportedly preferential race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the plan’s supposed beneficiaries. Accordingly, courts might face considerable difficulty in ascertaining whether a given race classification truly furthers benign rather than illicit objectives. An effort to achieve proportional representation, for example, might be aimed at aiding a group’s participation in the political processes by guaranteeing safe political offices, or, on the other hand, might be a “contrivance to segregate” the group, Wright v. Rockefeller, supra, at 58, thereby frustrating its potentially successful efforts at coalition building across *173racial lines. Compare, e. g., the positions of the black plaintiffs in Wright, supra, at 53-54, with the black intervenors, 376 U. S., at 62 (Douglas, J., dissenting). Indeed, even the present case is not entirely free of complaints that the remedial redistricting in Brooklyn is not truly benign. Puerto Rican groups, for example, who have been joined with black groups to establish the “nonwhite” category, protested to the Attorney General that their political strength under the 1974 reapportionment actually is weaker than under the invalidated 1972 districting. App. 295. A black group similarly complained of the loss of a “safe” seat because of the inadequacy of the 65% target figure. Id., at 296-297. These particular objections, as the Attorney General argued in his memorandum endorsing the 1974 reapportionment, may be ill-advised and unpersuasive. Nevertheless, they illustrate the risk that what is presented as an instance of benign race assignment in fact may prove to be otherwise. This concern, of course, does not undercut the theoretical legitimacy or usefulness of preferential policies. At the minimum, however, it does suggest the need for careful consideration of the operation of any racial device, even one cloaked in preferential garb. And if judicial detection of truly benign policies proves impossible or excessively crude, that alone might warrant invalidating any race-drawn line.

Second, even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society’s latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual’s worth or needs. See, e. g., Kaplan, Equal Justice in an Unequal World: Equality for the Negro—The Problem of Special Treatment, 61 Nw. U. L. Rev. 363, 379-380 (1966). Furthermore, even preferential treatment may act to stigmatize its recipient groups, for although intended to correct sys*174temic or institutional inequities, such a policy may imply to some the recipients’ inferiority and especial need for protection.3 Again, these matters would not necessarily speak against the wisdom or permissibility of selective, benign racial classifications. But they demonstrate that the considerations that historically led us to treat race as a constitutionally “suspect” method of classifying individuals are not entirely vitiated in a preferential context.

Third, especially when interpreting the broad principles embraced by the Equal Protection Clause, we cannot well ignore the social reality that even a benign policy of assignment by race is viewed as unjust by many in our society, especially by those individuals who are adversely affected by a given classification. This impression of injustice may be heightened by the natural consequence of our governing processes that the most “discrete and insular” of whites often will be called upon to bear the immediate, direct costs of benign discrimination. See, e. g., Kaplan, supra, at 373-374; cf. Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 737-738 (1974). Perhaps not surprisingly, there are indications that this case affords an example of just such decisionmaking in operation. For example, the respondent-intervenors take pains to emphasize that the mandated 65% rule could have been attained through redistricting strategies that did not slice the Hasidic community in half. State authorities, however, chose to localize the burdens of race reassignment upon the petitioners rather than to redistribute a more varied and diffused range of *175whites into predominatly nonwhite districts. Brief for Respondent-Intervenors 29-31. I am in no position to determine the accuracy of this appraisal, but the impression of unfairness is magnified when a coherent group like the Hasidim disproportionately bears the adverse consequences of a race-assignment policy.

In my view, if and when a decisionmaker embarks on a policy of benign racial sorting, he must weigh the concerns that I have discussed against the need for effective social policies promoting racial justice in a society beset by deep-rooted racial inequities. But I believe that Congress here adequately struck that balance in enacting the carefully conceived remedial scheme embodied in the Voting Rights Act. However the Court ultimately decides the constitutional legitimacy of “reverse discrimination” pure and simple, I am convinced that the application of the Voting Rights Act substantially minimizes the objections to preferential treatment, and legitimates the use of even overt, numerical racial devices in electoral redistricting.

The participation of the Attorney General, for example, largely relieves the judiciary of the need to grapple with the difficulties of distinguishing benign from malign discrimination. Under § 5 of the Act, the Attorney General in effect is constituted champion of the interests of minority voters, and accompanying implementing regulations ensure the availability of materials and submissions necessary to discern the true effect of a proposed reapportionment plan. See 28 CFR § 51.19 (1976). This initial right of review, coupled with the factfinding competence of the Justice Department, substantially reduces the likelihood that a complicated reapportionment plan that silently furthers malign racial policies would escape detection by appropriate officials. As a practical matter, therefore, I am prepared to accord considerable deference to the judgment of the Attorney General that a particular districting scheme complies with the remedial objectives furthered by the Voting Rights Act.

*176Similarly, the history of the Voting Rights Act provides reassurance that, in the face of the potential for reinvigorating racial partisanship, the congressional decision to authorize the use of race-oriented remedies in this context was the product of substantial and careful deliberations. Enacted following “voluminous legislative” consideration, South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966), the Voting Rights Act represents an unequivocal and well-defined congressional consensus on the national need for “sterner and more elaborate measures,” ibid., to secure the promise of the Fourteenth and Fifteenth Amendments with respect to exercise of the franchise. Insofar as the drawing of district lines is a process that intrinsically involves numerical calculations, and insofar as state officials charged with the task of defining electoral constituencies are unlikely simply to close their eyes to considerations such as race and national origin,4 the resort to a numerical racial criterion as a method of achieving compliance with the aims of the Voting Rights Act is, in my view, consistent with that consensus. Whatever may be the indirect and undesirable counter-educational costs of employing such far-reaching racial devices, Congress had to confront these considerations before opting for an activist race-conscious remedial role supervised by federal officials. The “insidious and pervasive” evil of *177voting rights violations, 383 U. S., at 309, and the “specially informed legislative competence” in this area, Katzenbach v. Morgan, 384 U. S. 641, 656 (1966); cf., Morton v. Mancari, 417 U. S. 535, 555 (1974), argue in support of the legitimacy of the federal decision to permit a broad range of race-conscious remedial techniques, including, as here, outright assignment by race.

This leaves, of course, the objection expressed by a variety of participants in this litigation: that this reapportionment worked the injustice of localizing the direct burdens of racial assignment upon a morally undifferentiated group of whites,5 and, indeed, a group that plausibly is peculiarly vulnerable to such injustice. This argument has both normative and emotional appeal, but for a variety of reasons I am convinced that the Voting Rights Act drains it of vitality.

First, it is important to recall that the Attorney General’s oversight focuses upon jurisdictions whose prior practices exhibited the purpose or effect of infringing the right to vote on account of race, thereby triggering § 4 of the Act, 42 U. S. C. § 1973b (1970 ed. and Supp. V). This direct nexus to localities with a history of discriminatory practices or effects enhances the legitimacy of the Attorney General’s remedial authority6 *178over individuals within those communities who benefited (as whites) from those earlier discriminatory voting patterns. Moreover, the obvious remedial nature of the Act and its enactment by an elected Congress that hardly can be viewed as dominated by nonwhite representatives belie the possibility that the decisionmaker intended a racial insult or injury to those whites who are adversely affected by the operation of the Act’s provisions.7 Finally, petitioners have not been deprived of their right to vote, a consideration that minimizes the detrimental impact of the remedial racial policies governing the § 5 reapportionment. True, petitioners are denied the opportunity to vote as a group in accordance with the earlier districting configuration, but they do not press any legal claim to a group voice as Hasidim. Brief for Petitioners 6 n. 6. In terms of their voting interests, then, the burden that they claim to suffer must be attributable solely to their relegation to increased nonwhite-dominated districts. Yet, to the extent that white and nonwhite interests and sentiments are polarized in Brooklyn, the petitioners still are indirectly “protected” by the remaining white assembly and senate districts within the county, carefully preserved in accordance with the white proportion of the total county population. While these considerations obviously do not satisfy petitioners, I am persuaded that they reinforce the legitimacy of this remedy.

*179Since I find nothing in the first three parts of Mr. Justice White's opinion that is inconsistent with the views expressed herein, I join those parts.

Part IV limits its endorsement of proportional distribution of voting power to instances where the voters are polarized along racial lines and where the State intends “no racial slur or stigma with respect to” any race. Ante, at 165. I agree that, without such qualifications, the position taken in Part IV plainly would be intolerable. Yet, even as so limited, problems remain that, in my view, merit further consideration. For example, questions concerning the polarization of voters and the motives of the state policymakers may place formidable factfinding responsibilities on the courts. Such responsibilities, I believe, are greatly lessened when the Voting Rights Act is involved. See infra, at 175. Furthermore, I am not at rest with the notion that a “cognizable discrimination” cannot be found so long as whites “as a group [are] provided with fair representation . . . .” Ante, at 166. While voting may differ from other activities or entitlements in that one group of voters often derives benefits indirectly from a legislator serving a different constituency—and to that extent I agree that the adverse effects of a racial division are “mitigated,” compare ante, at 166 n. 24 with infra, at 178—I am not satisfied that this vicarious benefit fully answers the Hasidim’s complaint of injustice. Finally, I have serious doubts that the Court’s acceptance of political-party apportionment in Gaffney v. Cummings, 412 U. S. 735, 751-754 (1973), necessarily applies to apportionment by race. Political affiliation is the keystone of the political trade. Race, ideally, is not.

Of course, it could be suggested that the remedial rules upheld in these earlier cases acquired added legitimacy because they generally arose in the form of judicial decrees rather than affirmative legislative or executive action. Arguably, a court-imposed remedy to correct a ripe finding of discrimination should be accorded particular respect. Yet, the role of the judiciary is not decisive. First, as is the case here, even a legislative policy of remedial action can be closely tied to prior discriminatory practices or patterns. See infra, at 177-178. Second, many of the criticisms discussed below that commonly are leveled against the benign use of racial remedies—e. g., the potential for arousing race consciousness and the likelihood of imposing disproportionate burdens of compliance upon relatively "innocent” whites—remain relevant regardless of the decisionmaker who imposes the remedial regime. I believe, therefore, that the history of equitable decrees utilizing racial criteria fairly establishes the broad principle that race may play a legitimate role in remedial policies.

This phenomenon seems to have arisen with respect to policies affording preferential treatment to women: thus groups dedicated to advancing the legal position of women have appeared before this Court to challenge statutes that facially offer advantages to women and not men. See, e. g., Kahn v. Shevin, 416 U. S. 351 (1974). This strategy, one surmises, can be explained on the basis that even good-faith policies favoring women may serve to highlight stereotypes concerning their supposed dependency and helplessness.

It would be naive to suppose that racial considerations do not enter into apportionment decisions. A variety of motivations could produce such a reliance upon race: e. g., the desire to injure a race, a conscious decision to distribute voting power among a variety of well-defined racial and ethnic groups or neighborhoods, or an attempt to employ race as a proxy for political affiliation. Cf. Gaffney v. Cummings, 412 U. S., at 753-754. The relative difficulty of isolating these motivations in this closeted decisionmaking context, and the further difficulty of deciding which of these motives should be permissible given the realities of the apportionment process, undoubtedly explain § 5’s prohibition of practices that either “have the purpose . . . [or] effect of denying or abridging the right to vote on account of race or color . . . .”

I find nothing in the record to suggest—and such a proposition seems implausible—that the Hasidim bear any unique responsibility for the decisions that led to discriminatory voting practices or effects in Brooklyn. Nor is there any contention that petitioners derived special benefits from the prior discriminatory policies, other than to the extent that the overall white voice countywide was strengthened.

It is true that invoking the Attorney General's jurisdiction under the Voting Rights Act does not require an actual finding of purposeful discrimination. Nonetheless, as Mr. Justice White's opinion notes, Congress enacted the Act with “broadly remedial” objectives in mind, ante, at 156, and the conditions that activate § 4 are those “which experience had proved were indicative of racial discrimination in voting,” ante, at 156-157. Indeed, these discriminatory effects often would afford probative evidence *178of purposeful discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265-268 (1977).

In this regard, it is important that, notwithstanding the worrisome implications of the intervenors, supra, at 174-175, petitioners themselves do not protest that their treatment under the 1974 plan was motivated by anti-Semitism. See, e. g., Brest, The Supreme Court, 1975 Term, Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 17 (1976). Indeed, it is undeniable that the Hasidic community is contiguous to several nonwhite neighborhoods, and, therefore, understandably is a candidate for redistricting given the goal of creating 10 viable nonwhite voting majorities.