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Cite as: 599 U. S. ____ (2023)

19

Thomas, J., dissenting

In affirming the District Court’s nonpredominance finding, the plurality glosses over these plain legal errors,^[1] and it entirely ignores Dr. Duchin’s plans—presumably because her own explanation of her method sounds too much like textbook racial predominance. Compare 2 App. 634 (“[A]fter … what I took to be nonnegotiable principles of population balance and seeking two majority-black districts, after that, I took contiguity as a requirement and compactness as paramount” (emphasis added)) and id., at 635 (“I took … county integrity to take precedence over the level of [black voting-age population] once that level was past 50 percent” (emphasis added)), with Bethune-Hill, 580 U. S., at 189 (explaining that race predominates when it “ ‘was the criterion that … could not be compromised,’ and race-neutral considerations ‘came into play only after the race-based decision had been made’ ” (quoting Shaw II, 517 U. S., at 907)), and Miller, 515 U. S., at 916 (explaining that race predominates when “the [mapmaker] subordinated traditional race-neutral districting principles … to racial

↑ The plurality’s somewhat elliptical discussion of “the line between racial predominance and racial consciousness,” ante, at 23, suggests that it may have fallen into a similar error. To the extent the plurality supposes that, under our precedents, a State may purposefully sort voters based on race to some indefinite extent without crossing the line into predominance, it is wrong, and its predominance analysis would water down decades of racial-gerrymandering jurisprudence. Our constitutional precedents’ line between racial awareness and racial predominance simply tracks the distinction between awareness of consequences, on the one hand, and discriminatory purpose, on the other. See Miller, 515 U. S., at 916 (“ ‘Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects’ ” (alterations and some internal quotation marks omitted)); accord, Shaw I, 509 U. S. 630, 646 (1993). And our statements that §2 “demands consideration of race,” Abbott v. Perez, 585 U. S. ___, ___ (2018) (slip op., at 4), and uses a “race-conscious calculus,” De Grandy, 512 U. S., at 1020, did not imply that a State can ever purposefully sort voters on a race-predominant basis without triggering strict scrutiny.

[1] The plurality’s somewhat elliptical discussion of “the line between racial predominance and racial consciousness,” ante, at 23, suggests that it may have fallen into a similar error. To the extent the plurality supposes that, under our precedents, a State may purposefully sort voters based on race to some indefinite extent without crossing the line into predominance, it is wrong, and its predominance analysis would water down decades of racial-gerrymandering jurisprudence. Our constitutional precedents’ line between racial awareness and racial predominance simply tracks the distinction between awareness of consequences, on the one hand, and discriminatory purpose, on the other. See Miller, 515 U. S., at 916 (“ ‘Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects’ ” (alterations and some internal quotation marks omitted)); accord, Shaw I, 509 U. S. 630, 646 (1993). And our statements that §2 “demands consideration of race,” Abbott v. Perez, 585 U. S. ___, ___ (2018) (slip op., at 4), and uses a “race-conscious calculus,” De Grandy, 512 U. S., at 1020, did not imply that a State can ever purposefully sort voters on a race-predominant basis without triggering strict scrutiny.

[1]