SUPREME COURT OF THE UNITED STATES

No. 95–2024

C. MARTIN LAWYER, III, APPELLANT v.

DEPARTMENT OF JUSTICE et al.

on appeal from the united states district court for the middle district of florida

[June 25, 1997]

Justice Scalia, with whom Justice O'Connor, Justice Kennedy, and Justice Thomas join, dissenting.

The Court today affirms a Federal District Court's redrawing of Florida Senate District 21, despite the fact that the District Court never determined that District 21 was unconstitutional, and never gave the State an opportunity to do its own redrawing of the district to remedy whatever unconstitutional features it contained. In my view, the District Court's actions represent an unprecedented intrusion upon state sovereignty.

The District Court held that it could exercise its authority under the Fourteenth Amendment to "compel the nullification and re-establishment of state legislative boundaries" without finding a violation of the Fourteenth Amendment, so long as "the case presents a sufficient evidentiary and legal basis to warrant the bona fide intervention of a federal court into matters typically reserved to a state." 920 F. Supp. 1248, 1251–1252 (MD Fla. 1996). Although acknowledging that the "`[d]efendants and defendant-intervenors deny these assertions [of unconstitutionality],'" id., at 1252–1253, n. 3 (quoting Settlement Agreement), the District Court determined that the claim that District 21 was unconstitutional was "fairly litigable," ibid., and found this enough to justify its reapportionment order.

The only authority cited by the District Court for the proposition that a court can mandate a remedy without finding liability is Justice O'Connor's concurring opinion in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 284 (1986). But that opinion has no bearing on the present case. It dealt with the question whether a school board could, consistent with the Constitution, implement an affirmative action program without first making contemporaneous findings that such a program is justified by specific instances of past discrimination. Id., at 289–291. Quite obviously, whether a State may take voluntary action without first determining that it has violated the law has nothing to do with whether a federal court may impose a remedy without first determining that the State has violated the law.

The Court evidently believes that an adjudication of unconstitutionality of District 21 was unnecessary here because the State entered into a consent agreement accepting judicial imposition of Plan 386. For this proposition it relies upon Firefighters v. Cleveland, 478 U. S. 501 (1986), which said that "it is the parties' agreement that serves as the source of the [District Court's] authority to enter . . . judgment . . . ." Id., at 522. However, that passage from Firefighters is of no help to the Court—even putting aside the fact that the "agreement" there at issue, unlike the one here, was an agreement to remedy unlawful conduct (a "pattern of racial discrimination") that had been adjudged, id., at 506, 511–512. Firefighters was a Title VII action by minority firefighters, alleging that the city discriminated against them in promotions. A union representing the majority of the city's firefighters intervened as a party-plaintiff and objected to the settlement, contending, among other things, that its consent was required in order for the District Court to enter a consent decree. We disagreed. The minority firefighters and the city, we said, could have reached an out-of-court agreement to resolve their dispute. See id., at 522–523, and n. 13. "The choice of an enforcement scheme—whether to rely on contractual remedies or to have an agreement entered as a consent decree—is itself made voluntarily by the parties." Id., at 523.

In today's case, by contrast, neither the appellant nor the other original plaintiffs (now appellees) could have concluded a binding out-of-court "redistricting agreement" with representatives of the Florida Legislature, or with the state attorney general—and the Court does not contend otherwise. The Florida Constitution, Art. III, §16, requires the legislature to draw districts "by joint resolution," and provides no authority for the attorney general to do so. Any "redistricting agreement" entered into by these officials with individual voters would obviously be null and void. And a court decree that does not purport to be in remediation of an adjudged violation of law cannot make it binding. See Firefighters, supra, at 522–523. See also, e.g., Perkins v. Chicago Heights, 47 F. 3d 212, 216 (CA7 1995).

These principles would suffice to invalidate an unauthorized private agreement as the basis for a federal judicial decree in even the ordinary case, but they should apply even more rigorously to an agreement purportedly supporting a federal judicial decree of state reapportionment, which we have described as an "unwelcome obligation," Connor v. Finch, 431 U. S. 407, 415 (1977), that should be undertaken by a district court only as a last resort, see, e.g., White v. Weiser, 412 U. S. 783 (1973). Indeed, even if it were possible for the Florida Legislature to authorize two of its members to negotiate an apportionment agreement that could be the basis for a federal court decree, one would think that the special solicitude we have shown for preservation of the States' apportionment authority would cause the court to demand clearer credentials on the part of those who purport to speak for the legislature. The District Court asserted that "Florida's House and Senate . . . manifested . . . the authority to consent," 920 F. Supp., at 1251, but it points to no resolution conferring such authority upon the individual legislators before the court; and as to the Senate, at least, there is some evidence no such authority exists. The record contains a letter from State Senator Howard C. Forman to the District Court reading in part as follows:

"This letter is intended to communicate to you in the strongest possible terms that the Florida Senate has not agreed to any proposed settlement. As a constitutionally established collegial body, the Florida Senate can agree to nothing without open debate and action by the entire body. As a duly elected Member of the Florida Senate, I have never waived my constitutional duty and responsibility to participate in all Senate matters. And, under no circumstances does any individual Senator, or group of individual Senators, have the right to agree to anything in my name. . . .

"Therefore, I challenge any representation that the Florida Senate has agreed to any proposed settlement in this case." Record 152.

But in fact all these inquiries into authorization to enter private agreements are supererogatory. Even an authorized private agreement cannot serve as the basis for a federal apportionment decree. We have said explicitly, and in unmistakable terms, that "[f]ederal courts are barred from intervening in state apportionment in the absence of a violation of federal law." Voinovich v. Quilter, 507 U. S. 146, 156 (1993) (emphasis added). As Chief Judge Tjoflat's concurrence below correctly stated, "to enter the judgment in question, the court must find that District 21 is unconstitutional." 920 F. Supp., at 1256–1257. I would adhere to that principle.

Finally, I find no merit in the Court's apparent suggestion, ante, at 11, that appellant has no standing to complain of this defect. A judicial decree entered without jurisdiction has mooted his suit. Surely that is enough to sustain his appeal.

The District Court's failure to find the pre-existing District 21 unconstitutional is alone enough to require reversal of the judgment. But the District Court committed a second error, in failing to give the Florida Legislature the opportunity to redraw the district before imposing a court-ordered solution. We have repeatedly emphasized that federal interference with state districting "represents a serious intrusion on the most vital of local functions," Miller v. Johnson, 515 U. S. ___, ___ (1995) (slip op., at 14), and that "reapportionment[, which] is primarily the duty and responsibility of the State," Chapman v. Meier, 420 U. S. 1, 27 (1975), "`is primarily a matter for legislative consideration and determination.'" Connor v. Finch, supra, at 414 (quoting Reynolds v. Sims, 377 U. S. 533, 586 (1964)). "`[J]udicial relief becomes appropriate,'" we have said, "`only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.'" White v. Weiser, supra, at 794–795 (quoting Reynolds, supra, at 586). See also Growe v. Emison, 507 U. S. 25, 33–34 (1993); Upham v. Seamon, 456 U. S. 37, 41–42 (1982); McDaniel v. Sanchez, 452 U. S. 130, 142 (1981); Wise v. Lipscomb, 437 U. S. 535, 540 (1978) (opinion of White, J.). The District Court's failure to give Florida a reasonable opportunity to craft its own solution after a judicial finding that the current districting was unconstitutional—or even (since here such a finding was never made) after the judicial finding that a constitutional claim is "fairly litigable"—was most assuredly error.

The District Court repeatedly referred to Plan 386 as a "legislative solution," 920 F. Supp., at 1255, and the concurrence described it as a "plan that the Florida legislature has proposed," id., at 1257. But judicial characterization does not overcome reality. The fact that the Speaker of Florida's House of Representatives and the President of Florida's Senate participated in the negotiations and consented to the settlement does not magically convert Plan 386 into a Florida law. The "opportunity to apportion" that our case law requires the state legislature to be afforded is an opportunity to apportion through normal legislative processes, not through courthouse negotiations attended by one member of each House, followed by a court decree.

Appellees contend that the District Court actually offered the legislature the opportunity to redistrict, but that the legislature declined. This contention is based upon the fact that the representatives of the Florida Legislature informed the District Court, prior to any proceedings on the merits, that the legislature would likely not sua sponte redraw the districts in response to Miller v. Johnson, supra, and on the status reports filed by the Florida Senate, see ante, at 10, n. 5. But the requisite opportunity that our cases describe is an opportunity to redraw districts after the extant districts have been ruled unconstitutional—not after a Supreme Court case has been announced which may or may not ultimately lead to a ruling that the extant districts are unconstitutional. See e.g., Growe, supra, at 34; McDaniel, supra, at 142; Reynolds, supra, at 585–586. The State is under no obligation to redistrict unless and until a determination has been made that there has been a violation of federal law.

* * *

Because the District Court lacked the authority to mandate redistricting without first having found a constitutional violation; and because the District Court failed to give the State an opportunity to redistrict on its own after notice of the constitutional violation (or even after notice of the court's intention to proceed with its own plan), I would reverse the judgment of the District Court and remand for further proceedings. Given my conclusion on appellant's first two challenges to the District Court's judgment, I have no occasion to consider the constitutionality of the court-drawn district, Plan 386.

I respectfully dissent.