UNITED STATES v. HAYS

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Argument of Richard I. Ieyoub

Chief Justice Rehnquist: We'll hear argument now in Number 94 588... 558, United States v. Ray Hays, consolidated with Number 94 627, Louisiana v. Ray Hays.

General Ieyoub.

Mr. Ieyoub: Mr. Chief Justice, and may it please the Court:

This is the Louisiana congressional reapportionment case, the first such case to reach this Court on the merits after Shaw v. Reno.

The district court held that Louisiana's Fourth Congressional District violated the Equal Protection Clause of the Fourteenth Amendment.

The district court also held that all race conscious redistricting, while not always unconstitutional, is always subject to strict scrutiny.

Louisiana's population is over 30 percent black.

Since the end of Reconstruction until the 1980's blacks have never comprised a majority in any of Louisiana's congressional districts.

It wasn't until 1983, compelled by Federal court order, that Louisiana drew its first majority minority district, and not until 1990 did Louisiana send its first Congressman to Washington.

In this century, no black has been elected to either State wide office, or to Congress, or the State legislature, except from majority minority districts, and I hardly need to remind this Court--

Unknown Speaker: What do you mean, General Ieyoub, about, what is a majority minority district?

Mr. Ieyoub: --Your Honor, I think a majority minority district is a district that will give minorities a fair opportunity to elect representatives of their choice.

Unknown Speaker: Well then, it's almost self defining, isn't it?

I mean, if you say nobody has been elected except from a district which will give minorities a chance to elect a minority, is there any independent definition of a majority minority district?

Mr. Ieyoub: Your Honor, I do not know of any independent definition.

It's simply that the district contains a majority minority population.

For instance, Louisiana's Fourth Congressional District has a 55 percent majority minority population.

Unknown Speaker: Well, so that perhaps is the definition, that the district has a majority of a minority population.

Mr. Ieyoub: Yes, Your Honor.

And of course, Louisiana has had, unfortunately, a history of past discriminatory practices.

Act 1, Your Honors, is an effort on the part of a majority white legislature to afford minorities a fair opportunity... I do not say a guarantee, but a fair opportunity to have a second minority voice in the halls of Congress.

Act 1 does not guarantee--

Unknown Speaker: The assumption being that unless a minority is in a majority, they don't have a fair opportunity to get one of their members elected in Louisiana, an acceptance of, essentially, racial voting.

Mr. Ieyoub: --Your Honor, because of--

Unknown Speaker: You acknowledge that in Louisiana you don't have a chance of being elected unless you're elected by a majority of your race.

Mr. Ieyoub: --Your Honor, the history that we have, the voting history in the State of Louisiana is an indication--

Unknown Speaker: You accept that.

You accept that as the reality and want to draw district lines on the acceptance of that reality, that people vote by race, and that we must district by race.

Mr. Ieyoub: --Your Honor, we will accept the reality that a black has never been elected to a legislative seat or to a congressional seat unless it was from a majority minority district in the State of Louisiana.

We have to accept that fact because that is the history.

As to the Fourteenth Amendment--

Unknown Speaker: And if you accept that fact, do you draw these districts in order to perpetuate that practice?

Mr. Ieyoub: --No, Your Honor.

We--

Unknown Speaker: Or to try and eliminate it?

Mr. Ieyoub: --We try to draw the districts... we try to draw the districts in such a way as to give a fair opportunity to minorities to elect their candidates with the hope that soon we will not have to consider race in this situation.

Unknown Speaker: You think this will help society to get away from considering race.

Mr. Ieyoub: Yes, Your Honor.

Unknown Speaker: By intentionally drawing the districts according to race, and having people run on the basis of race, presumably, in these racial districts, you think we're going to eliminate this terrible state of affairs in Louisiana, that people vote by race.

Mr. Ieyoub: I think that--

Unknown Speaker: You're going to eliminate it rather than entrench it.

Mr. Ieyoub: --I think, Your Honor, that it can eliminate it.

I think that if a State is reasonable and balanced in its drawing a majority minority district, I think that if we send a message that race does not submerge all other facts in the consideration of drawing a majority minority--

Unknown Speaker: How are you sending that message when you draw a district on the basis of race, and when you come up and acknowledge that you don't have a fair chance of getting elected in Louisiana unless people of your race vote for you?

Mr. Ieyoub: --Your Honor, we send that message because this is a district that only gives a fair opportunity.

It doesn't pack minorities into a particular district.

It's 55 percent black population, which we have evidence to establish is almost necessary to give a fair opportunity.

If you look at the congressional districts that border District 4, you will find that those districts have between an 18 to 27 percent black population, which is more black population than 75 percent of all the other districts Nation wide, so that's some indication that we're not trying to send out a message that we're trying to segregate or separate.

Rather, we're trying to include.

We're trying to give a fair opportunity here.

If you look at 5 of the 12 parishes that were split in drawing District 4, you will find that the portion of the parishes that were brought into District 4 actually had a greater white population than a black population.

For instance, Evangeline Parish.

That section of Evangeline Parish that came into District 4 had a 62 percent white population and only a 37 percent black population.

What we are--

Unknown Speaker: General, may I just be clear on one fact?

We now know what a majority minority district is, and you said the population, the black population was 30 percent of the State.

Before 1983, was there any majority minority district?

Mr. Ieyoub: --No, Your Honor.

Unknown Speaker: And no black had ever been elected, ever?

Mr. Ieyoub: That's correct, Your Honor.

That's correct, Your Honor.

As for the Fourteenth Amendment, we submit that the judgment below condemning Act 4 as a violation of the Equal Protection Clause is fundamentally wrong for three reasons.

First, the district court misread Shaw v. Reno and applied strict scrutiny in condemning District 4, which is not bizarre on its face if you measure it by objective standards of past redistricting principles.

Unknown Speaker: Well, was... is District 4 the most compact majority minority district that could be drawn outside New Orleans?

Mr. Ieyoub: Yes, Your Honor, it is the most compact.

It follows very closely the old Eighth Congressional District, which was a majority white district.

It follows it extremely closely.

I invite Your Honors to look at the color depictions of the maps of the old Eighth Congressional District which we have supplied the Court.

There you will see 25 years of redistricting history upon which the configuration of the old... of the Fourth Congressional District is built.

Unknown Speaker: But wasn't the old Eighth District deliberately gerrymandered just to keep Representative Long in office?

Mr. Ieyoub: Your Honor, there was evidence that was... that it was drawn in such a way as to assist Congressman Gillis Long into being elected, but obviously it was never challenged in any court.

Unknown Speaker: And that's going to be our criterion.

Any... have we ever stricken down a gerrymander that was done for political purposes?

Mr. Ieyoub: Yes, Your Honor, I think that the Court has struck down, but political considerations can be taken into consideration when drawing... when redistricting.

Unknown Speaker: What case did that?

That's a new one to me.

I didn't know that we had a case that struck down political gerrymandering on the basis of protecting incumbents.

Mr. Ieyoub: That is my mistake, Your Honor.

I don't believe that the Court has ever struck down a political gerrymander to protect incumbency.

Incumbency, in fact, can be considered in redistricting.

Unknown Speaker: So that's going to be our criterion as to whether this district is too weird.

If it were done for political purposes, and there's nothing too weird for political purposes--

[Laughter]

--it can be done for racial purposes.

Is that the criterion you urge upon us?

Mr. Ieyoub: No, Your Honor.

The criteria that I urge upon the Court is to use past redistricting history, past redistricting principles, ensuring that the district that is drawn is not significantly stranger in shape than any other district.

Unknown Speaker: You didn't stick to the old district.

You intentionally altered the old district, as unusual as it is.

You made it a little more unusual, or unusual in a different way, in order to ensure that you had a certain majority of people of a certain race, isn't that right?

Mr. Ieyoub: There's no question, Your Honor, that the legislature considered race in trying to form a majority minority district.

Unknown Speaker: That is, indeed, how the district was formed.

You didn't just take this old gerrymandered district and leave it there.

You changed it to be sure you could get a certain number of people of a certain race.

Mr. Ieyoub: To some extent, Your Honor, but not so dramatically that one could say it was a dramatic departure from past redistricting principles, and certainly District 4 does not look that much stranger than the old District 8, which was a majority white district.

Unknown Speaker: The original one did.

You reacted... Louisiana reacted to Shaw v. Reno.

What was the difference between the district that's here before us and the original one that you had?

Mr. Ieyoub: Well, Your Honor, in some cases District 4 is actually more compact than the old District 8.

District 8 extended from the Texas border all the way to Lake Ponchartrain.

That is not the case in District 4.

It follows the same Red River parishes down the Red River and Mississippi axis through Central Louisiana and ends around Baton Rouge.

Unknown Speaker: But that represents quite a change from, what was it called, Act 42?

Mr. Ieyoub: Yes, Your Honor, it does represent quite a change from Act 42.

This we submit, Your Honor, is a compact district that does not depart dramatically from past historical configurations.

In fact, it follows the old Eighth District quite a bit.

Unknown Speaker: General, may I go sort of behind your present argument to what I understand your brief to say and raise a question about that?

As I understand it, the point of what you're arguing now is that because this district is not bizarre, since it... on historical grounds there's nothing that unusual about it, there shouldn't be any strict scrutiny applied at all, because you say Shaw and Reno requires bizarreness as sort of the threshold showing in order to require a strict scrutiny analysis, is that your argument?

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: I have been assuming, and you correct me if I'm wrong, that just as you would try to define bizarre by what is traditional, that you would probably argue, and I guess I have assumed, that what is sufficiently compact for the Gingles test probably has the same sort of historical criterion.

If it's compact to the degree it historically has been, that's compact enough.

Mr. Ieyoub: That's correct, Your Honor.

Unknown Speaker: Here's the problem I have with the argument.

If that is going to be the condition upon which we apply strict scrutiny, then once we find that a district is bizarre enough to be subject to the scrutiny, it's necessarily going to flunk the Gingles test, so that it could never, in effect, be justified as necessary or reasonably necessary to avoid a section 2 violation.

Conversely, if it doesn't flunk the Gingles test, if it's not bizarre, then if we adopt your position or adopt the bizarreness position, we would never, at least, be scrutinizing it for any other purpose.

We would, for example, never get to the point of scrutinizing it for packing.

How do we get out of that bind, that if we scrutinize it at all it's necessarily going to flunk.

If we don't scrutinize it, we never would look to other violations such as a packing violation?

Mr. Ieyoub: Your Honor, I think that initially one can look at the particular configuration of the district and make a determination, at least looking at it, whether or not the configuration is bizarre.

Unknown Speaker: No, but your argument was... I realize that's what we're all going to do in the first instance, but I thought your argument was that whether we ultimately classify it as bizarre or not is going to depend on whether it departs significantly from what had been produced by non... we assume nonracial districting in the past, so that we may start out by looking at it, but ultimately what we're going to do on your theory is, is to ask, is this like what we used to do?

Mr. Ieyoub: That's correct, Your Honor.

I think that what needs to be done is to decide whether or not the district does follow historical redistricting configurations.

If it's not stranger than other districts that have been drawn using other factors, if that is the case, then certainly it is not bizarre under Shaw v. Reno, and strict scrutiny should not apply.

Unknown Speaker: All right, but then how do we solve the problems that are bothering me?

How do we solve the problem that if it's bizarre enough to scrutinize, it necessarily is going to flunk the test?

Maybe that's the easy part.

And how do we also solve the problem that if it's not bizarre enough to scrutinize, we wouldn't look for other violations such as packing?

Mr. Ieyoub: Well, Your Honor, if it's bizarre... if you say that it is bizarre, and strict scrutiny applies, then I think you have to look at the compelling State interest, and then whether or not it's narrowly tailored, or the plan is narrowly tailored to satisfy that compelling State interest.

If you apply strict scrutiny, then I think that the Court has to prove, or show the compelling State interest, and it can be done that, even if the Court... it can be done even if the Court finds that it is bizarre.

Unknown Speaker: Thank you, General Ieyoub.

General Days, we'll hear from you.

Argument of Drew S. Days, III

Mr. Days, III: Mr. Chief Justice, and may it please the Court:

I'd like to begin my argument by trying to address the question that Justice Souter was putting to General Ieyoub about the relationship between bizarreness and the nature of the inquiry.

First of all, I agree with Justice... General Ieyoub that the Court here used the wrong legal standard in determining whether the district was bizarre sufficient to trigger strict scrutiny under this Court's decisions in Shaw.

Unknown Speaker: Well, General Days, let's suppose that the evidence discloses... and remove it from this case for a moment.

Let's just suppose the evidence discloses clearly that the predominant purpose of drawing the particular district boundaries was to achieve a certain racial goal.

That was the predominant purpose, regardless of appearance.

Is there a claim made?

Mr. Days, III: I think it, as this Court had addressed it in Shaw v. Reno, there would have to be a showing of the bizarreness of the district, otherwise what would happen is courts could justify--

Unknown Speaker: Well, of course, the extreme appearance of a district boundaries might be strong evidence of just that, that the predominant or sole purpose was to draw it along racial lines.

Now, if that's established by other means, is the Court not to look at that?

Mr. Days, III: --Justice O'Connor, we don't read Shaw v. Reno to authorize that type of inquiry.

What we see Shaw v. Reno, with respect, as doing is imposing some limiting principles on preexisting precedent.

Unknown Speaker: You think it's a purely visual test?

Mr. Days, III: No, I don't think it's a purely visual test.

I think, as General Ieyoub indicated, there has to be some inquiry on the part of the Court with respect to what has been done in the past.

It's an objective and comparative analysis, not simply eyeballing.

Unknown Speaker: But only looking at the shape of the district.

Mr. Days, III: Only looking at the shape of a district I think does not provide the type of information that we believe this Court was seeking.

Unknown Speaker: Well, what I'm trying to get at perhaps is the same thing I think--

Mr. Days, III: Yes.

Unknown Speaker: --Justice O'Connor was trying to get at.

Supposing that the shape itself does not prove to be really "bizarre" but a finding of fact is made that the predominant purpose of the legislature was to construct a majority minority district.

Mr. Days, III: Well, under those circumstances I think the case would move into strict scrutiny and the State would have to show a compelling interest for doing what it was doing.

Unknown Speaker: So bizarreness by... is not an essential ingredient of a claim.

Mr. Days, III: I think it is, because prior to Shaw v. Reno, and as I indicated I don't think Shaw v. Reno changed the law, it was not possible to set out an equal protection claim unless one could show that there was some injury.

That is, intent to discriminate and a discriminatory effect, and it is not our reading of Shaw v. Reno that it changed that law.

Unknown Speaker: Well, you agree that in the Shaw v. Reno context it is a violation of the Constitution to draw a district with the predominant purpose of composing it on the basis of one race, or substantially one race.

Mr. Days, III: With respect, Justice Kennedy, I don't think that's what Shaw v. Reno says.

It says that the district is drawn in a way that can be reasonably understood as being solely for the purpose of separating the races.

Unknown Speaker: But that itself, I take it, is the evil that the constitutional protection is designed to prevent.

Mr. Days, III: That is correct, that Shaw v. Reno--

Unknown Speaker: And if that is so, why should it be confined just to districts with an irregular shape?

Mr. Days, III: --Because I think this Court's prior precedent dictates that.

Let me give an example of how the Court's standard here--

Unknown Speaker: Other than the precedent, what would be the explanation for that?

Mr. Days, III: --The explanation would be that Shaw v. Reno did not create a new cause of action that rejected prior causes of action.

We understand Shaw v. Reno to say that if it is shown that the district is so bizarre that it can be understood in only a racial gerrymandering fashion, then the State is responsible for justifying that under strict scrutiny.

Unknown Speaker: In your view, why should that be a constitutional violation under Shaw?

Mr. Days, III: Because this Court did not change the prior law, and what the prior law said, what this Court recognized, was that race is something that is always a part of the redistricting process.

There is no such thing as a neutral redistricting line, so--

Unknown Speaker: But then it seems to me that the Chief Justice is right.

All you're imposing is a visual test, and that makes very little sense to me, other than that as one threshold indicator of the prohibited intent.

Mr. Days, III: --Well, Justice Kennedy, I think what this Court recognized in Shaw v. Reno and other cases, as I was about to describe, was that race is a consideration along with other criteria in the redistricting process, so if what you're saying, Justice Kennedy, is that whenever a State uses race as one of the considerations in the redistricting process, it's automatically moved over into strict scrutiny.

Then the consequences are as follows.

If Louisiana, for example, drew a district that recognized the interest of Creoles, decided that Creoles had a different language, had a different religious view, had different political views and different economic concerns, that would not trigger any constitutional review.

But if the State looked at a group of blacks and decided that those blacks had commonalities of interest that coincided with race but did not turn solely on race and tried to recognize those communities of interest, the reading that's being suggested would automatically shift that determination by the State into strict scrutiny, and it is our position that for this Court to suggest that every time a State or a locality or a municipality goes through a redistricting process and uses race as one of the considerations that it moves into strict scrutiny has several problems.

Unknown Speaker: General, I don't think the question has been whether they use it at all.

I thought the question has been whether that has been the predominant consideration.

Mr. Days, III: I understand that, Justice.

Unknown Speaker: you know, whether that's the basis on which the district was drawn, and I thought that that had been conceded here, that these are not hypothetical questions you're getting.

I thought that that is the case here, that the Attorney General for the State acknowledges that that's how the district was drawn, with the precise purpose of getting a majority minority district.

Mr. Days, III: Well, but Justice Scalia, we can talk about whether the State satisfied strict scrutiny, but the point I think that is very important to make in terms of the process is, it's not merely a matter of shifting burdens, it is that even with a completely regular traditional district with no deviations whatsoever, the standard that the district court used, namely, where race conscious redistricting is involved it is not necessarily unconstitutional but always subject to strict scrutiny, is a very powerful and I think very disruptive and incorrect way of looking at the districting process.

Unknown Speaker: Don't you think a distinction can be made between situations where race is one of a lot of factors that's considered in districting and situations in which race is the determinative factor, where you set out to create a majority minority district?

Can't that distinction be made?

Mr. Days, III: The distinction can be made, but I think the process is important.

If a State uses an approach that happens to coincide with concentrations of racial minorities, I think the test that's being presented here would automatically haul before the Court the legislative officers who were involved in this process to probe their intent, to find out what they were thinking, what all of them had in mind when they passed the statute.

Unknown Speaker: But General Days, isn't it the case here that it's conceded the endeavor was to create a majority minority district, and I think you answered Justice O'Connor's question by distinguishing Reno v. Shaw from simply endeavoring to create a minority majority district.

Mr. Days, III: Yes.

Unknown Speaker: And you cited precedent.

I thought you had in mind United Jewish Organizations v. Carey, and wasn't the predominant purpose there to create a minority majority district?

Mr. Days, III: Absolutely, Justice Ginsburg, and that's what I meant when I said that we did not understand Shaw v. Reno to repudiate prior precedent, and in UJO, five justices of this Court very clearly said--

Unknown Speaker: UJO was a badly splintered Court.

Mr. Days, III: --It was badly splintered, but Mr. Chief Justice, I think one can find in that opinion a recognition that in the limited circumstance where the State was trying to respond to a denial of preclearance by the United States Attorney General under the Voting Rights Act, that what New York did there was consistent with the Constitution.

There are other positions there that we're not... we recognize were not shared by a majority--

Unknown Speaker: In your view--

--As I understand it, what you're saying is that, you're saying we should read what we... what the majority said in Shaw is a mechanism basically to make the first cut so that every time there is not an automatically litigable issue.

Mr. Days, III: --That's correct.

Unknown Speaker: My problem is, why isn't that also going to function for reasons raised in my question as a last cut?

In other words, if you flunk the bizarreness test, you're necessarily going to flunk any attempt to get a section 2 justification because it won't be compact with Gingles.

Conversely, if you pass the bizarreness test based on historical comparison you don't look at anything else, like packing?

How do we get out of that?

Mr. Days, III: Well, let me take the second part of that.

I think the Court has indicated it's always available for plaintiff to bring a packing claim.

That's independent of this process, and it would be like a traditional lawsuit showing dilution, which was not a right that was abrogated or altered in any way insofar as we're concerned by Shaw v. Reno, so that claim would still be available.

Unknown Speaker: So Shaw and Reno basically is just one entrance gate to equal protection.

It's not exclusive.

Mr. Days, III: That's absolutely correct.

Now, on the question of whether a district is found bizarre by the Court, then what happens at the point of meeting strict scrutiny and showing a compelling interest are narrow tailoring.

I think that if bizarreness were found, it might be impossible to satisfy the claim that it was a strong basis in evidence for thinking that a section 2 violation might occur.

Unknown Speaker: Would there be an opportunity to justify it on avoiding section 5?

Mr. Days, III: I think there would be a possibility under section 5, and there would also be a possibility of justifying it under the Fourteenth Amendment, because the compelling interest that the State has put forward here--

Unknown Speaker: It simply is the State's autonomous effort to... yes.

Mr. Days, III: --That's correct, and therefore there is obviously a connection between a bizarreness finding and a section 2 defense, but not between bizarreness and some of the other claims that are made.

Unknown Speaker: General Days, speaking of section 5, in preclearing does the Department of Justice assume that unless the legislature of the State creates a majority minority district where it is possible to do it, that otherwise there... you would assume discrimination on the part of the State?

Mr. Days, III: No, that's not the position.

It's a more totality of the circumstances analysis, and it's not an automatic determination as to how that would be resolved.

Unknown Speaker: Well, I guess we'll get into that more in the next case, but let me ask you one other thing.

Mr. Days, III: Yes.

Unknown Speaker: The plaintiffs in this case did not live in District 4, is that right?

Mr. Days, III: That's correct.

Unknown Speaker: And they did not... they lived in some district, was it contiguous to it?

Mr. Days, III: I believe it was a contiguous district, yes.

Unknown Speaker: And do you assume that they have standing to raise this claim?

Mr. Days, III: Well, Justice O'Connor, as you are aware, we did not raise the standing issue, but I think that it is a problematic concern in this case.

If Shaw v. Reno in fact entitled people because of certain stigmatic harm or the possibility that they would not be adequately represented to bring a Shaw v. Reno claim, those who are either in the district or in adjoining districts who might be affected by the district I think probably have the type of standing that the Court had in mind in Shaw v. Reno.

The problem is how far to take that, and whether it can go to the extent of the entire State, anyone, any place in the State can bring this type of lawsuit with respect to one district.

Unknown Speaker: Well, if you're included in because you're black, I presume you're excluded out because you're white.

Mr. Days, III: Yes.

Unknown Speaker: Certainly a person who's contiguous enough that he might have been included in but for the fact that they wanted to exclude any more white votes, I assume he'd have some complaint, but he might have to show that, I guess.

Mr. Days, III: Yes.

The only thing I'm trying to point out is that prior to the Shaw v. Reno... may I complete my answer--

Unknown Speaker: Yes.

Mr. Days, III: --Mr. Chief Justice?

Prior to Shaw v. Reno standing was consistent with a number of decisions of this Court like the Wright case, where there had to be something shown.

Injury, in fact, traceability and redressability.

Under Shaw v. Reno there appears to be some variation in those standards.

Thank you very much.

Unknown Speaker: Thank you, General Days.

Mr. Warren, we'll hear from you.

Argument of Edward W. Warren

Mr. Warren: Chief Justice Rehnquist, may it please the Court:

Before discussing this morning how this case fits within the Court's traditional equal protection framework, I think it's probably important to set the record straight.

First is the district court held Act 1, which is challenged here, is a cosmetic makeover of Act 42, which the State of Louisiana concedes was in violation of the Fourteenth Amendment.

Specifically, District 4 in Act 1 joins together four widely separated cities.

Unknown Speaker: But Mr. Warren, certainly it is not a cosmetic makeover in the sense that is... it follows closely the lines of the earlier district.

It's quite different.

Mr. Warren: Well, Chief Justice Rehnquist, I think that's a misperception in this sense.

There are four major metropolitan areas.

Unknown Speaker: Well, I mean, geographically it's quite different.

Mr. Warren: It looks different.

If you're simply--

Unknown Speaker: Well, it sure does.

Mr. Warren: --talking about visual appearances, it looks different, but let me stress that the key to this District 4 is four metropolitan areas which heretofore in Louisiana history had always been in three or four separate congressional districts.

The key to creating this district was joining them together in one district, combining them in one district.

Now, when they were combined in one district, in order to accomplish that, you end up having to split parishes, and this district splits 12 of its 15 parishes.

No previous district in the history of Louisiana ever split more than four parishes.

Indeed, no entire plan in the history of Louisiana ever split more than seven.

Unknown Speaker: Mr. Parks, where do the plaintiffs reside, in what district?

He's Mr. Warren.

Excuse me, Mr. Warren.

Mr. Warren: Justice--

Unknown Speaker: Where do the plaintiffs reside?

Mr. Warren: --Justice O'Connor, they reside in Grambling and Ruston, Louisiana.

Those two communities were in the previous District 4, the Zorro district that Chief Justice Rehnquist was referring to.

When the lines were redrawn, they were therefore separated out from the new District 4.

Unknown Speaker: They were in the 1992--

Mr. Warren: Yes.

Unknown Speaker: --district.

Mr. Warren: Yes, Your Honor.

Unknown Speaker: Do they contend--

--Are they contiguous now?

Mr. Warren: Yes, they are.

Unknown Speaker: Are they in a district that is contiguous now to 4?

Mr. Warren: Yes.

They were in District 5, and it is contiguous to District 4.

Unknown Speaker: Did they contend that the Zorro district was correctly designed?

Mr. Warren: No, Chief... I mean, no Justice Kennedy.

Their position was and is that they have a right not to be classified by race for purposes of districting.

Their claim is really closely analogous to the kind of claim that is made with respect to jury selection.

Unknown Speaker: Well, assuming that their contention, and I think that would be their contention, is that both the Zorro district and this district are improper, how have they been mistreated in this case?

Mr. Warren: Well, they've been mistreated, and this is what I was trying to address, Justice Kennedy, they have been mistreated by the State of Louisiana by being classified by race for purposes of districting.

It was their race, and it was the race of Louisiana citizens, which determined the lines which were drawn, and I think we've proved that.

Unknown Speaker: But Mr. Warren, they're all of different races.

Aren't these plaintiffs of different races?

Mr. Warren: Yes.

Unknown Speaker: That's a little hard to... I could see if you had white plaintiffs who said we were put out of this district because we were white, but you have a black plaintiff and a white plaintiff and an Asian American plaintiff, so every race is equally discriminated against, treated the same.

I don't see how you get racial discrimination by an exclusion that equally affects a black and a white.

Mr. Warren: Justice Ginsburg, our claim is that our plaintiffs are entitled to be treated without regard to race.

It is true--

Unknown Speaker: And these people are left out without regard to their race, or put in another district.

Mr. Warren: --No, but citizens in the State are being classified by... on racial grounds in order to draw these district lines, as the district court so found in this case.

Unknown Speaker: Then you really are arguing a kind of standing that I up until now thought existed only in the Establishment Clause area.

Is anybody... anybody in the State can object to this kind of districting?

Mr. Warren: Justice Ginsburg, I don't think that's true.

We are making a claim which is closely analogous to the standing found in the jury selection cases.

Unknown Speaker: Yes, but in the jury cases the people who are objecting are rather narrowly identified.

It is a party who can challenge, and it is a party who can challenge based upon the interests of excluded jurors, not on the basis of the whole world, or the whole State population.

Mr. Warren: But still and all, it is based upon the right of every citizen not to be put on a particular petit jury based on his or her race.

Unknown Speaker: Well, yes, but if I happen to be going about my business on the street below the courthouse and I find that, or I have reason to believe that a discriminatory jury selection is going on, I can't walk in and be given standing to object to it, and yet the analogy is that if I am at the furthest corner of Louisiana I can do precisely that with respect to this district.

Mr. Warren: Well, first let me say that it... the jury pool from which juries are selected is very much like the electorate from which districts are being drawn, but let me go further to say our plaintiffs were, as I responded to Justice O'Connor, in District 4 of Act 42, which was then invalidated.

Now they are... they... whether black or white, they are outside of the new District 4, that is true, but we--

Unknown Speaker: But they weren't put out because of their race, since they were--

Mr. Warren: --Well--

Unknown Speaker: --all different race.

Mr. Warren: --they weren't individually, perhaps, but the district lines were drawn based upon race so that individuals who were black or white or lived in those communities where the lines were being drawn on race were being classified by race.

Unknown Speaker: But they haven't personally been denied equal protection treatment, have them?

Mr. Warren: I think that they have--

Unknown Speaker: Some kind of generalized grievance?

Mr. Warren: --a personal right not to be classified by race.

We analogize it in our brief to Brown.

I mean, the question in Brown was not whether or not there was a different education.

It was stipulated, albeit probably not truly, the fact that the education was equal.

The question was being classified by race for purposes of education.

This is classification by the State for... by race for purposes of voting.

Unknown Speaker: Except for the Zorro, their brief residence in the evanescent Zorro district, how are they any different from any citizen in Louisiana, following Justice Souter's question?

It seems to me you're arguing for a generalized standing, which I think would take us quite beyond our existing case law.

Mr. Warren: First of all, I think we are arguing that persons who are in districts adjacent to this district are being affected, because the district... let me say, I don't want to engage in the very racial stereotypes which are the problem of this case in order to defend standing.

I don't want to say that my black plaintiff is being harmed because he's being put in a vastly white majority district.

That is feeding the very stereotype which is the vice in this case.

Unknown Speaker: Well, but you have to show some particularized injury, and I'm simply asking you how your plaintiffs are different than plaintiffs in any other part of the State, other than the fact they're contiguous, but they would have always been contiguous, other than the Zorro district, which they, too, challenged.

Mr. Warren: Well, I think again, unless I engage... it's easy enough for me to make the allegation that my plaintiff Ed Adams, who is black, is being harmed by being put in a district that is 85 percent white.

I could do that.

Sure I could make that allegation, but if I made that allegation, I would be predicating that allegation on the very vice at issue in this case, and that is racial stereotyping.

Unknown Speaker: You wouldn't have to do that.

You would satisfy me if you could show some evidence that but for racial districting one of your plaintiffs would have been in a different district.

I mean, that seems to me a concrete harm.

A person would have been in one district.

He is put in another district solely by reason of racial districting, even though the racial districting might not have had anything to do with his race, but you haven't even demonstrated that, as far as I can see.

Mr. Warren: I think we have demonstrated that, because... because--

Unknown Speaker: But for this racial districting any one of your plaintiffs would have been in a different district?

Mr. Warren: --Well, but for this entire process they would have been in district 4 and Act 42.

They were taken out of that when the lines were redrawn, but because those lines were redrawn on a racial basis they were put out of a previous district.

Unknown Speaker: They had to be redrawn.

Mr. Warren: Of course they had to be redrawn.

Unknown Speaker: They had to be redrawn because the prior system was unconstitutional.

It seems to me you have to make some showing that the redrawing would have included them in a different district but for this racial factor.

Mr. Warren: I--

Unknown Speaker: And I don't know that you've made any such showing.

Mr. Warren: --Well, I think I've made the following showings.

Let me try to summarize, because I don't want to... Justice Ginsburg--

Unknown Speaker: Mr. Warren, you did start out with plaintiffs who were voters in the district that you challenged.

Mr. Warren: --Indeed.

Unknown Speaker: And then the State too it back and said, we realize this plan has infirmities.

Mr. Warren: Right.

Unknown Speaker: We're coming up with a new... and that left your people out.

There's no way to connect them back to the plan that is moot.

It's academic.

Compare them to where they were before there was any 42.

Mr. Warren: But Your Honor, you're missing one major point that I keep trying to stress.

We challenged Act 1.

We did not challenge District 4.

We challenged Act 1.

We challenged the entire State law which districted by race State wide.

Unknown Speaker: So you do say that anybody in the State has a claim.

Mr. Warren: I do say anybody in the State has a claim.

Unknown Speaker: Okay.

Mr. Warren: I'm not trying to duck that at all.

Unknown Speaker: Well, you tried to avoid it once.

Can I--

Mr. Warren: Well, I apologize.

I didn't mean to avoid that, because we do say that.

Unknown Speaker: --Can I ask you a hypothetical question that's been running through my mind?

Mr. Warren: Yes, Justice--

Unknown Speaker: The heart of the case you say is driven by race.

Mr. Warren: --Yes.

Unknown Speaker: Supposing the State legislature had two alternative plans to consider, both of which had completely compact districts, had followed State county lines, or parish lines, were equal in population, they were equal in all respects in terms of neutral factors except one.

In one plan there are two majority minority districts, in the other plan there are no majority minority districts, and the history of the case, the legislative history, is perfectly clear that everybody in the legislature unanimously voted for the two minority minority districts, minority majority, simply because they thought it would be a good thing for the State of Louisiana to have two black Congresspersons.

Would that be unconstitutional?

Mr. Warren: First, that's not our case, but--

Unknown Speaker: I think it is your case.

Mr. Warren: --Well, I mean, I think it's not our case because I think these lines don't meet any of the criteria you're talking about, but let me continue and not argue--

Unknown Speaker: I'm assuming... I'm trying to follow up on Justice O'Connor's question as, how important is the shape of the district, and I'm assuming there's no shape problem at all in my hypothetical--

Mr. Warren: --Oh, in your hypothetical, if we assume--

Unknown Speaker: --and no doubt at all about the controlling factor in the decision between these two plaintiffs.

Mr. Warren: --We're assuming away shape.

We're assuming away traditional districting principles.

That is, we don't have the split parishes and split cities and all the things that I was referring to previously.

If we have only the concession that race was the predominant factor, it is still subject to strict scrutiny.

Unknown Speaker: But is it unconstitutional in my example?

Mr. Warren: It is unconstitutional unless the State can come forward with a compelling interest.

Unknown Speaker: Their only reason, in my example--

Mr. Warren: They have no--

Unknown Speaker: --Their only reason is they think they have a history they're not proud of, and they would like to have two black Representatives in Congress.

Mr. Warren: --The history won't do it.

Unknown Speaker: Well, of course--

--Now, supposing the other choice is, the majority in fact voted the other way and said, we'll vote for the other plan because we don't want two black Representatives.

Would that be unconstitutional?

Mr. Warren: That would be equally questionable.

Unknown Speaker: So they couldn't choose either one.

[Laughter]

Mr. Warren: I don't think we would... in a real world I don't think we get stymied in the way in which you're talking.

Race cannot be the predominant factor under this Court's equal protection analysis.

Unknown Speaker: Mr. Warren, I assume when--

Mr. Warren: Yes.

Unknown Speaker: --you have regular districts and it's one of the elements of regular districts, ordinarily race is not the predominant factor.

There are a lot of other factors you're taking into account.

Geographic proximity, same schools, community of geographic interests, and so forth.

That's what makes regular districts ordinarily less challengeable, but if you find one where the only reason they picked this particular regular district is race, then you have a different situation, but an unusual one, I suppose.

Mr. Warren: But I think an extremely unusual one.

I mean, this is a hypothetical that is really impossible to be true in reality, because I think--

Unknown Speaker: You only assert it's bad if race is the predominant consideration.

Mr. Warren: --Yes.

I think this is--

Unknown Speaker: Do you acknowledge that race can be one of the considerations in a whole bunch?

Mr. Warren: --Sure.

Unknown Speaker: Or not at all.

Mr. Warren: Sure.

Race... I agree with what--

Unknown Speaker: Supposing it's the predominant consideration for only those legislators who are frank in their voting in the legislature.

They said candidly what they were doing and others said nothing.

When does it become predominant?

Does it have to be a majority that say so?

Mr. Warren: --This Court has had for 20 years a framework for evaluating these cases, these questions of mixed motive.

That framework applies here just as it does in a whole variety of different settings.

Unknown Speaker: But it requires a careful examination of legislative history to find out what the real motive was, is that right?

Mr. Warren: It requires a careful examination of facts, and those facts can include consideration of the real purpose of the legislature.

Let me say, though, it's a lot easier than that is suggested, because what you could look at, and Shaw was an example of one type of evidence, the bizarre shape of the district.

Another is exactly what I was trying to start with, which was... which is, did you follow traditional district principles?

Did you follow Louisiana's own history?

The answer is no.

Unknown Speaker: I suppose for many... I mean, the basic thing that I have a lot of trouble is, I don't understand this word predominant.

Are you saying that people can draw district boundaries in order to put into one district large numbers of Catholics, Jews, Germans, Hispanics, Italians, all kinds of things, but not blacks, and if there is some distinction there, what is the distinction, particularly in light of the history in this country, and how do you in fact draw a line where you've gone too far?

I mean, those are the problems that are in my mind, and this word predominant seems like a keystone, but what does it mean?

I can understand what it might mean if you have a very... maybe it's something to do with shape.

I mean, what is your view of the standard?

Are you saying that under your principle all of the districts in the United States, or many of them, or most of them are suddenly going to be redistricted?

What sort of workable principles are there, and what are you aiming towards?

That's what I... the questions in my mind.

Mr. Warren: I understand exactly, and Justice Breyer, the starting point is this Court's traditional analysis under Vandermeer... I mean, under Washington v. Davis and Arlington Heights.

Now, the question is always going to be factual.

The question that you're asking, though, is always was the factor which drove this district a suspect classification?

Was it race, in this case.

If the answer to that was yes--

Unknown Speaker: Well, that would be true in many, many, many districts in the United States.

Since the time of 1789 people did look to not only racial but characteristics of nationality, religion, class, occupation, a host of different things in drawing districts, and I imagine that in any case whether you were an Irish American, an African American, or whatever the legislature thought might produce a vote for their side, that if we go back and look at those little jogs, and so forth, in the boundary, there is a little jog there or here where that's what was in the legislator's mind.

Now how, in fact, is a court going to go into this and say when that little jog is or is not--

Mr. Warren: --First... first of all--

Unknown Speaker: --appropriate or not appropriate?

Mr. Warren: --First of all, Justice Breyer, this Court said in Shaw, and I think Justice O'Connor's opinion on this draws about the right line, and that is that race can help us to define the boundaries of a community.

I mean, it's not irrelevant.

It is one of these things that is going to be before the legislature, and we know it is going to be before the legislature.

The problem is when race takes over and the district is being drawn based upon racial stereotypes, and if I could quote from what our opponents said in their brief, because they make this point, they say that blacks and presumably whites also vote differently and, as they say, are different politically cohesive groups, and they argue that without race dominant districting, those groups are going to be put at a competitive disadvantage, but what that is doing, it is making assumptions that all blacks are going to vote the same way, all whites are going to vote the same way, that blacks can't represent whites and whites can't represent blacks.

What it is doing is erasing us as individuals.

We should--

Unknown Speaker: But Mr. Warren, does it make that assumption really that all will vote the same way, or that a sufficient number of them will vote the same way to make a political judgment that makes sense, such as all Catholics tend to vote in a certain way in the City of Chicago or all Polish Americans tend to vote in a certain... are you saying they are all going to vote the same way?

I don't think anybody thinks--

Mr. Warren: --No, I don't think you're saying all--

Unknown Speaker: --You're just saying there's a political reality at work here.

Mr. Warren: --But I think what you're saying, you're making again, it is just as--

Unknown Speaker: It's invidious to assume that all blacks--

Mr. Warren: --Yes.

Unknown Speaker: --Is it less invidious to assume that all Polish Americans will vote the same way?

Mr. Warren: If being a Polish American is a suspect classification, it's the same--

Unknown Speaker: Well, it's only if it's a suspect classification that you don't get the benefit of being able to have your group interest treated as a group interest.

Mr. Warren: --I think it's... I think you're making an assumption of it being a benefit, and what I'm saying is that it is a stereotype--

Unknown Speaker: Well, certainly, don't you think more black legislators would have voted for this plan than against it, and is it invidious to make that political--

Mr. Warren: --I'm not at all sure, and I think that black legislators, who knows, but I think that... those are the presumptions that we cannot rest on.

And let me say again, you come back to the jury selection cases I find extremely helpful in this regard, because what is the prosecutor doing but making assumptions about how blacks or white or men or women are going to vote in a particular case, and it is that stereotypical assumption, even if it has some factual basis--

Unknown Speaker: --Mr. Warren, what do you do with--

Mr. Warren: --that lies at the heart of the problem.

Unknown Speaker: --It was a badly splintered opinion, but there were two, if you will, stereotypes involved in the UJO case, and both of them, both groups accepted the proposition that if we can have our district not every Hasidic Jew is going to vote the same way but a lot of them are, and the same assumption was made... what is the difference between Louisiana and New York, or do we just say, UJO is a hopeless precedent, forget it?

Mr. Warren: Well, I think this Court in Shaw did deal with UJO and probably dealt with it about right.

I mean, UJO was filed as a vote dilution case.

It was not filed and was not pursued as this case is being pursued.

This case is predicated on the assumption that classifying voters by race is precluded by the Fourteenth Amendment.

Now, how you prove that is a different question, and it's difficult, and there's going to be difficult problems of proof in some cases.

Unknown Speaker: Supposing... supposing, Mr. Warren, that the evidence before the... shows that the Louisiana legislature simply paired off this district because they wanted about a 70 percent Democratic majority in it.

Can you come into court and say well, the statistics from past voting in Louisiana show that 90 percent of blacks vote Democratic, therefore, although ostensibly it was Democratic it was really racially motivated?

Mr. Warren: It would be a very hard proof.

That's a very different case for two reasons.

Number 1, when you join a political party you're making a choice.

By contrast, when the State makes assumptions about you as... because of the color of your skin, the State is engaged in prohibited racial stereotyping.

Number 2, this Court's precedents make a distinction between race and political considerations.

Justice Brennan said it very eloquently in the UJO case.

This Court recognized that again in Shaw.

This Court has a line that it has drawn between political gerrymandering and racial stereotyping, which is what is at issue in this case.

Unknown Speaker: Mr. Warren, may I ask you just to clarify something about your position?

When you were addressing Justice Breyer's question, one of the things he said that was bothering him was how we deal with the concept of predominant purpose.

Mr. Warren: Yes.

Unknown Speaker: As I understand it, your position is not that it must be the predominant purpose.

If it is a motivating factor at all, that is sufficient to trigger the scrutiny on your position, isn't that correct?

Mr. Warren: We suggest that what this Court said in Arlington was that it mus be a substantial motivating factor to create a prima facie case.

Unknown Speaker: But not predominant.

Mr. Warren: But substantial motivating and predominant first of all I think are simply semantic--

Unknown Speaker: Academic distinctions.

Mr. Warren: --distinctions, but let me say secondly, under Arlington Heights, substantial motivating factor is what triggers... what creates a prima facie case.

The State always has an opportunity to come back and say no, it's not the--

Unknown Speaker: Okay.

Mr. Warren: --predominant factor.

Unknown Speaker: Did the judge then in this particular case go too far?

I take it what you're describing is the criterion that the judge in the Johnson case used.

Didn't the judge in this case take a more... adopt a lower threshold for strict scrutiny than yours?

Mr. Warren: I really don't think that's the case.

This Court relied from the very outset on this Court... I mean, the district court relied from the very outset on this Court's decisions in Arlington and Wright v. Rockefeller, and they conducted three long hearings of 2 days each, and had it simply been a matter of, was race considered at all, well, it would have been an easy case.

What they found on the record was that race was the fundamental factor, and I'm quoting from the Court's opinion, fundamental factor driving Act 1 was race.

Unknown Speaker: Mr. Warren, I'd like to be clear on whether you make a distinction between race and other suspect categories.

Would you make any different argument if we were talking about Polish Americans, about Italian Americans, about Irish Americans?

Suppose the dominant or a substantial purpose was to have a district where the dominant national origin group would be Irish.

Mr. Warren: Justice Ginsburg, we address that in our brief, and we said that if a suspect classification becomes the touchstone, it's invalid.

We used the Kiryas Joel case as an example of that and several justices on this Court actually cited Shaw in connection with their opinions in that case.

The question is, and it was in that case, the defining feature was the Hasidic sect, the Satmar sect, and that, if it becomes the touchstone, is, I think, the basis for invalidation.

Unknown Speaker: What if, and this raises both Kiryas Joel and the UJO case, what if a racial, ethnic, or religious group has certain social characteristics that render it cohesive?

I always viewed UJO as not lumping these people together because they were Hasidic Jews but because they had a lifestyle that rendered them a natural political community.

You would have no objection to--

Mr. Warren: Not at all.

Not at all.

Unknown Speaker: --to a city which has an area that is a social unit, all of which is black, and perhaps the blackness has something to do with the social unit of it, that being lumped together, would you?

Mr. Warren: No, not at all.

I mean, I--

Unknown Speaker: Well then, why isn't the fact that they typically vote together sufficient?

Mr. Warren: --Because that is the racial stereotyping.

The question--

Unknown Speaker: You mean, it's a stereotype if it's a social affinity--

Mr. Warren: --No, no, no.

Unknown Speaker: --I mean, a stereotype if it's a political affinity but not a stereotype if it's a social affinity?

Mr. Warren: The question--

Unknown Speaker: And why then doesn't... wouldn't proof that they in fact have a social affinity overcome the presumption?

Mr. Warren: --These are always going to be difficult factual questions, but it's a different issue.

What is the boundary of the community?

In Justice Scalia's question, the social aspects of the community are helping to define the community.

Unknown Speaker: We can take judicial notice of that.

Mr. Warren: Right.

Unknown Speaker: But we can't take similar judicial notice whenever the characteristic is a racial characteristic, is that it?

Mr. Warren: Race is different, and it's not just race, it is suspect classifications.

Unknown Speaker: So normally race is different because it's normally totally irrelevant to the decision.

But see, in this case, apparently Louisiana made a decision that it was not irrelevant, and therefore the normal reason for strict scrutiny does not apply.

Mr. Warren: Well, race comes into play in lots of decisions that are made in society which are subject to the Arlington Heights analysis.

This is not the only place where the decisionmaker is going to be aware of race.

The question is factual.

The question is difficult sometimes.

A lot of times it's easy.

Here it's easy.

Here it's easy because the district court held three separate hearings, it sorted through all the facts, it heard all the evidence, it's evident, self evident, I think, to anyone who examines the record that this district was drawn based on race, it split parishes, cities, it was designed for this purpose.

There can be hard cases, sure.

There's going to be hard cases under any Arlington Heights analysis, but this Court has concluded... this Court did conclude in Gingles, when we're talking about difficult factual questions like this, that the district court's judgment should be respected unless the decision is clearly erroneous, unless the findings are clearly erroneous, and here they plainly are not clearly erroneous.

Unknown Speaker: Mr. Warren, when you speak about difficult decisions, one of the many problems in this case is when you deal with Shaw v. Reno, when you've got one criterion, bizarreness, and that's not hard to apply, but to determine predominant, substantial, and it can spread to other groups, national origin groups that have been classified as suspect, it seems you're getting... you're opening the door to the kinds of challenges that the Federal courts were into of necessity in the school segregation cases and to a limited extent in the redistricting cases.

It just... well, how can you contain this thing once you open the door in this way?

Mr. Warren: Your Honor, I don't think it's difficult to contain.

I think most districts Nationwide, the majority of any race, are there because that's where the communities are and we don't have this problem, but let me tell you the problem, and that is that the Justice Department has a program which is maximizing the number of majority minority districts Nationwide and forcing States to engage in the kind of racial stereotyping that is at issue here.

That is the problem.

If the Justice Department were to follow Beer and back away from a maximization approach, we would have far fewer challenges, and most of these problems could be resolved by district courts if and when challenges are made.

These challenges are being made--

Chief Justice Rehnquist: Thank you... your time has expired, Mr. Warren.

Mr. Warren: --Thank you.

Chief Justice Rehnquist: Thank you.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in number 94-558 and a related case United States versus Hays will be announced by Justice O’Connor.

Argument of Justice O’connor

Mr. O’connor: These consolidated cases come here on direct appeal from the United States District Court of the Western District of Louisiana.

They concern a challenge to Louisiana's Congressional Districting Plan called Act 1.

Act 1 contains two so-called majority-minority voting districts.

One of them District 2 is located in the New Orleans area.

The other District 4 begins in the northwest part of the State and runs southeast along the Red River to Baton Rouge.

Appellees who do not reside in either majority-minority district claim that Act 1 is a racial gerrymander that violates the Fourteenth Amendment.

The District Court focusing particularly on District 4 agreed that Act 1 constitutes a racial gerrymander subject to strict scrutiny under the principles this Court announced two terms ago in Shaw versus Reno.

It also held that Act 1 is not narrowly tailored to furthering a compelling governmental interest unless that it is unconstitutional.

Louisiana and the United States as a defendant-intervener appealed directly to this Court.

In an opinion filed with the clerk today, we do not reach the merits of appellees challenge to Act 1, because we conclude that appellees lack standing to bring it.

It is well-settled and an order to bring suite in Federal Court, a plaintiff may not assert a generalize grievance against allegedly illegal governmental conduct, but instead must have personally suffered what our case is called “injury in fact”.

We have held that racial classifications of any sort cause individualized injury.

We have recognized in Shaw that in the voting context such classifications can cause special representational harms, but appellees do not live in the allegedly, racially gerrymander district where they might suffer these representational harms nor have they shown that they personally have been classified according to their race.

Appellees therefore, have failed to demonstrate Louisiana’s Redistricting Plan injured them, and as they have not carried their burden of showing they have standing to sue.

We vacate the District Court’s judgment and remand the case with instructions to dismiss the complaint.

Justice Breyer has filed a concurring statement in which Justice Souter joins; Justice Stevens has filed an opinion concurring in the judgment; Justice Ginsburg concurs in the judgment.