Subject: Re: Michigan admissions case
From: Rick Hasen
Date: 4/1/2003, 4:49 PM
To: mmcdon@gmu.edu
CC: election-law_gl@majordomo.lls.edu
Reply-to:
rick.hasen@mail.lls.edu

I don't think it is right to characterize Hunt v. Cromartie (now Easley v. Cromartie) in this way. Recall that Justice O'Connor wrote the Shaw v. Reno opinion that focused primarily on the "bizarre" shape of the districts in question in determining the existence or not of an unconstitutional racial gerrymander. It was then Justice Kennedy in Miller v. Johnson who put forward the alternative "predominant factor" test. The Shaw majority of 5 has seen consistent battles over which standard should apply, leading Justice O'Connor frequently to go her own way (as when she separately concurred in her own opinion in Bush v. Vera, and when she sided with the usual four dissenters in a Justice Breyer opinion upholding the districting plan in Easley.)

That said, there probably is a connection between the districting cases and the race cases. In an article this weekend in the New York Times, Can the Justices Buck What the Establishment Backs?, Linda Greenhouse suggested that the Court (or, more subtly, Justice O'Connor) likely will be swayed by majority opinion on the role that race should play in American society. Greenhouse wrote:

"Mr. Dellinger ...made the successful argument in ... a voting rights case two years ago that upheld the latest version of a North Carolina Congressional district that the court had earlier invalidated as a racial gerrymander. The district was now legitimate, the court found, because while race was still a factor, it was not 'dominant and controlling' but rather was commingled with old-fashioned politics. The effect was to offer legislatures the promise of safe passage through the redistricting minefield that the court itself had created in a series of rulings in the mid-1990's.

"The apparent message of the initial rulings — 'don't use race' — was deeply unsettling to the vested interests of both political parties, but the new message, "don't use race too much," was much more palatable. Here, too, Justice O'Connor changed sides and provided the fifth vote to uphold the district and extricate the court from a position that was uncomfortably to the right of the political establishment's center of gravity."

Rick

Michael McDonald wrote:
WSJ Article on Law Professors

A little off topic, but I find it interesting to see election law spilling over to other cases, so I thought I would share this observation:

 

Listening to Justice O’Conner’s comments on NPR regarding the Michigan law school admissions case, I was struck by her questioning, which implied that race could be considered as one factor among many in admissions decisions.  This echoes her argument in Hunt v Cromartie 532 U.S. 234 (2001), where she set a standard of “race as the predominant factor” in determining when strict scrutiny should be applied to claims of racial gerrymandering.

 

==================================

Dr. Michael P. McDonald           

Assistant Professor

Dept of Public and International Affairs

George Mason University

4400 University Drive - 3F4

Fairfax, VA 22030-4444

 

Office: 703-993-4191

Fax: 703-993-1399

Efax: 561-431-3190

 

mmcdon@gmu.edu

http://elections.gmu.edu/

 

 


-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html