MJH: Right. 

KAS: Which is kind of the same situation with affirmative action debates, or arguments made by critics of affirmative action. How do you think the theory behind affirmative action signifies in the context of the law? 

MJH: Thc voting-districts cases are technically and legally a much narrower category than the general questions about affirmative action, because there is a voting rights act, in which the Congress of the United States has explicitly authorized taking race into account in creating congressional districts. This is a rather unusual case. This is a case where Congress found that the previous composition of districts was in fact discriminating against minorities. The Supreme Court, in other words, is attempting to undo a quite unusual situation in which Congress has affirmatively supported the idea that race needs to be taken into account. This is not the same case as the court on its own concluding that it should or shouldn't take race into account. What's really constitutionally and legally wrong about Shaw v. Reno [the 1993 case concerning the constitutionality of racially drawn voting districts] first is that Justice O'Connor, while acknowledging that Congress could say race might be legitimately taken into account, somehow didn't follow the logic of that position. I think it' s because she was ultimately of two minds; on one hand, she didn't want race to be taken into account under any circumstances. And on the other, she knew there were clear precedents in the voting area where Congress had said that voting was an area dominated by racial voting, and there needed to be districts drawn to produce minority representation, so they would need to be drawn in a particular way. 

KAS: She had a phrase about district drawing—sound... 

MJH: Sound districting principles. 

KAS: What did that mean? 

MJH: Well, there are ways of drawing districts. The law says that districts can't be too weirdly shaped. And that's minor control. Outside of the racial area, it's a minor control on legislatures districting in a partisan way. So it's out of that learning that she got sound districting principles. If that's all she means, that you can't have too bizarre a district (though the logic is not very good), it's not a very powerful intrusion into majority/minority districts. But I don't think that's all she means, and the district courts which have read the opinion certainly don't believe that's all she means. 

KAS: You mean that courts are now deciding against racially drawn districts by referring to the Supreme Court's opinion in Shaw? And, as you've argued, Shaw ignored the issue of history in the same way that the hate-speech cases ignored it. 

MJH: Exactly. The attempt to be neutral in Shaw required first that history be ignored. 

KAS: Which is exactly the posture that affirmative action attempts to combat. So, in order for Shaw to be corrected, history would have to be taken into account, and race relations would be the primary focus—in which case the Supreme Court would decide for districts being drawn to send up more black men and women to Congress. 

MJH: Yes. Now I suppose it's a valid question to ask, as I think Justice O'Connor had in the back of her mind, of when is the point at which correcting for the past stops?  I think that's a legitimate philosophical question. But wherever that point is, I think we have stopped much short of it thus far. And how do you know that? All you need to look at is the difference between infant mortality between blacks and whites in this country. All you have to do is look at unemployment levels, the difference between black and white. All you have to do is look at family income figures of blacks and whites. Wherever that point is, we're a long way from it in this country, it seems to me. We basically have not made much progress since the two societies that the Kerner Commission described, was it in 1964? It has grown even worse. 

KAS: Yet the Supreme Court did leave an interpretive space in which could be inserted a historically sound, historically responsible perspective—racially drawn districts can be considered constitutional if there is a "compelling reason" articulated for drawing such districts. And this compelling reason can be—and was interpreted by one federal panel as—past injustice. That was a compelling enough reason. Past injustice, and so the concept of reparations, was the logic. You would generally agree with that, right? 

MJH: I would generally agree with that. But I think this Supreme Court will not agree with that.