BREYER, J., dissenting Voinovich v. Quilter, 507 U. S. 146, 156-157 (1993); Chapman v. Meier, 420 U. S. 1, 26 (1975); White, supra, at 795; Reynolds, 377 U. S., at 586; Colegrove v. Green, 328 U. S. 549, 552554 (1946). A Court test that forbids the overt use of race in any (or all) of the circumstances listed above will simultaneously permit plaintiffs to bring lawsuits complaining about the covert use of what was overtly forbidden. Any redistricting plan will generate potentially injured plaintiffs, willing and able to carry on their political battles in a judicial forum. And judges (unable to refer, say, to intent, dilution, shape, or some other limiting principle) will find it difficult to dismiss those claims-particularly if (as the majority here says) the law deprives the legislature even of such defenses as a reasonable belief that a particular use of race was legally required. Nor can I find any legal principle that might constitute a simple, administrable stopping place-a principle that could serve the same function in this context as does the oneperson, one-vote rule in the context of reapportionment. See Miller, supra, at 938-939 (GINSBURG, J., dissenting). A simple "color blind" test-a test that rules out race consciousness across the board-will not work. Bush, supra, at 1060-1062 (SOUTER, J., dissenting). Legislators can and should use race consciously to prevent creating districting plans that discriminate against racial minorities, say, by "diluting" their votes. Cf. Adarand Constructors, Inc., 515 U. S., at 237. Moreover, this Court, recognizing the harm caused by slavery and 80 subsequent years of legal segregation, has held that legislators, within limits, can make conscious use of race in an effort to overcome the present effects of past discrimination. Ibid.; see also Shaw v. Reno, supra, at 646-647; Miller, 515 U. S., at 920. There may be other instances as well. Further, any test that applied only to race, ignoring, say, religion or national origin, would place at a disadvantage the very group, African-Americans, whom the Civil War Amendments sought to help, see id., at 936 BREYER, J., dissenting 938 (GINSBURG, J., dissenting). But judicial administration of a test that applied to all such voter group characteristics would involve courts yet more deeply in the basically political task of drawing and redrawing district boundaries. In focusing on these practical considerations, I repeat what previous dissents have argued. I do so because the holding here underscores the problems mentioned in those earlier dissents; and those problems, in turn, cast further doubt upon the soundness of today's decision. III I do not necessarily agree or disagree with those other aspects of the majority's opinion that I have not mentioned. But I shall stop with the main point. The Court, perhaps by focusing upon what it considered to be unreasonably pervasive positive use of race as a redistricting factor, has created a legal doctrine that will unreasonably restrict legislators' use of race, even for the most benign, or antidiscriminatory, purposes. And that doctrine will draw the Court too deeply into an area of legislative responsibility. For the reasons set forth here, and in previous dissenting opinions, I do not believe that the Constitution embodies the doctrine that the majority enunciates. And I believe that Upham requires us to vacate the District Court's judgment and remand the suit. [Appendix to opinion of BREYER, J., follows this page.] Syllabus METROPOLITAN STEVEDORE CO. v. RAMBO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 96-272. Argued March 17, 1997-Decided June 19, 1997 Respondent Rambo, injured while doing longshore work for petitioner Metropolitan Stevedore Company, received a compensation award under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), based on the parties' stipulation that he had sustained permanent partial disability. After Rambo acquired new skills as a longshorecrane operator and began making about three times his preinjury earnings, Metropolitan moved to modify his LHWCA award. Despite an absence of evidence that Rambo's physical condition had improved, the Administrative Law Judge (ALJ) ordered his benefits discontinued because of his increased earnings. The Benefits Review Board affirmed, but the Ninth Circuit reversed on the ground that LHWCA § 22 authorizes modification of an award only for changed physical conditions. This Court in turn reversed in Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, holding that the Act's fundamental purpose is economic, to compensate employees for wage-earning capacity lost because of injury; where that capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification, id., at 296-298, even without any change in physical condition, id., at 301. On remand, the Ninth Circuit again reversed the order discontinuing compensation. It recognized that when a worker suffers a significant physical impairment without experiencing a present loss of earnings, there may be serious tension between §8(h)'s mandate to account for disability's future effects in determining wage-earning capacity (and thus entitlement to compensation), and § 22's prohibition against issuing any new order to pay benefits more than one year after compensation ends or an award denial is entered. The court reconciled the two provisions by reading the Act to authorize a present nominal award subject to later modification if conditions should change. It held that the order discontinuing benefits was based on the ALJ's overemphasis on Rambo's current status and failure to consider his permanent partial disability's effect on his future earnings, and remanded the case for entry of a nominal award. Held: 1. A worker is entitled to nominal compensation under the LHWCA when his work-related injury has not diminished his present wage Syllabus earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions. The Act refers to compensable economic harm as "disability," defining that term as the measure of earning capacity lost as a result of work-related injury, §2(10). Section 8(c)(21) sets compensation for permanent partial disability due to unscheduled injuries at a percentage of the difference between the worker's average weekly preinjury wages and his wage-earning capacity thereafter, while §8(h) explains that such capacity is to be determined by the worker's actual earnings if they fairly and reasonably represent that capacity; if not, the factfinder may, "in the interest of justice," fix such capacity as shall be "reasonable," having due regard for, inter alia, "the effect of disability as it may naturally extend into the future." A problem in applying these provisions arises in the situation here at issue, where a worker presently earning at least as much as before his injury, but having a basis to anticipate that a future combination of the injury and jobmarket conditions will leave him with a lower earning capacity, must nevertheless file his disability claim within a year of the injury under § 13(a). If the worker is awarded no compensation, § 22 will bar him from seeking a modification in response to future changes in condition after one year. To implement §8(h)'s mandate in this class of cases, "disability" must be read broadly enough to cover loss of capacity not just as a product of the worker's injury and present job market conditions, but as a potential product of injury and market opportunities in the future. Thus, a potential disability is treated as a present disability, albeit a presently nominal one. It is "reasonable" and "in the interest of justice" (to use §8(h)'s language) to reflect merely nominal current disability with a correspondingly nominal award. Ordering nominal compensation holds open the possibility of a modification upward under § 22 if in the future circumstances so warrant. This approach is consistent with the wait-and-see approach the Act adopts generally with respect to benefits modification questions, and is the best way to reconcile §8(h)'s mandate to consider future effects with the requirements of §§ 13(a) and 22. The Court's view on this point coincides with, and is reinforced by, the position of the Director of the Office of Workers' Compensation Programs (OWCP), who is charged with administering the Act. It would be imprudent for the Court to attempt to resolve for all time the question of how high the potential for disability need be to be recognized as nominal, since that issue was not addressed by the parties. Those lower courts to have dealt with the matter have required a showing of a significant possibility of a future decline in wage-earning capacity, and, in the absence of rulemaking by the OWCP on the point, the Court adopts that standard. Pp. 126-138. |