Trump-administration officials have made no secret of their desire to purge the United States of nonwhite immigrants. Donald Trump has declared, “If you import The Third World, you become The Third World,” a common refrain repeated by his advisers. Trump has also said that immigrants have “bad genes,” that they are genetically predisposed to crime, and that they are “poisoning the blood of our country”—coming, as they are, “from Africa, from Asia, all over the world.”
In many instances, Trump’s vitriol has been directed at Black immigrants, particularly from Africa and the Caribbean. He has said that allowing in Haitian immigrants was a “death wish for our country” and that “they all have AIDS,” and accused them of eating household pets. He has referred to Haiti as a “filthy, dirty, disgusting” place, a “shithole” country, while complaining that America doesn’t take in enough people from Norway and Sweden. That last statement is crucial—Trump has not proved hostile to all immigrants. Removing all possibility that the president’s xenophobia is nonracial, the administration has implemented what is effectively a whites-only refugee policy that accepts solely South Africans of European descent.
Much of this evidence, including statements by Kristi Noem, the former head of the Department of Homeland Security, was presented to the Supreme Court when it considered in Mullin v. Doe whether the Trump administration had lawfully ended temporary protected status for hundreds of thousands of immigrants from Syria and Haiti. Yet the right-wing majority shrugged off the clear racially discriminatory intent in the president’s rhetoric, and sided with Trump. As long as one can find a valid justification for the policy decision, the opinion suggests, then it doesn’t actually matter what Trump said. The racist statements mean nothing so long as, in another, hypothetical universe, Trump could have made the same policy choice without making the racist statements first.
The immediate impact of Thursday’s ruling will be that 350,000 Haitians and 6,100 Syrians are now at risk of deportation, despite the dangers they face in their home countries. Yet the ruling has implications beyond immigration law, because it suggests that no amount of evidence of racial animus against Black people will be enough to convince a majority of justices that racial discrimination has occurred. As Guy-Uriel Charles, a professor at Harvard Law, put it to me, Justice Samuel Alito’s majority opinion “basically sets up an impossible burden for plaintiffs because race is rarely going to be the sole justification” for a policy.
[Adam Serwer: The Supreme Court has invented a right to discriminate]
“None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications,” Alito wrote in his opinion. “One may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race.”
Alito’s insistence that “none of the cited statements” was “overtly racial” does not pass the laugh test. Trump’s remarks were not just “overtly racial”; they were the essence of racism: assuming the value of individual human beings solely on the basis of their origin, regardless of their individual characteristics. Shortly after the decision, the White House adviser Stephen Miller gushed, “We can finally remove these Haitian illegal migrants.”
As Justice Elena Kagan observed in her dissent, “The evidence is there, plain to see, in the President’s statements, which the majority (and for that matter, his own lawyers) cannot even bear to repeat.” Alito indeed does not repeat these plainly racist statements, instead substituting his own “race-neutral” explanations for what they might have said or meant. In reference to Trump’s “shithole” comment, for example, Alito wrote that “a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations. The criteria for TPS designations guarantee that many, if not most, designated countries have such characteristics. Haiti is no exception. It is a very poor country, and living conditions there are unquestionably difficult.”
Alito, in perhaps the most grotesque Alito Disclaimer ever put to paper, adds that “poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country’s ills.” Denigrating people who have suffered from their country’s ills is precisely what Trump is doing when he talks about immigrants poisoning America by importing the values of the “Third World.” And yet, the justices are rewarding him for it.
In his opinion, Alito notes that the administration had previously eliminated TPS protections for countries in Asia, Africa, South America. “Most would regard this as a racially diverse group,” he writes, as if racism toward all nonwhite people doesn’t count as racism. But that’s a perfectly coherent ideological principle, the same one that led to the eugenics-inspired racist immigration restrictions that Miller has insisted should be restored, right down to the preference for Nordic immigrants.
The Roberts Court has been turning anti-discrimination law upside down for years. Its approach came into particular focus in May, with Louisiana v. Callais, in which it determined that not allowing Louisiana’s government to dilute Black votes was racist. In that case, Alito insisted that forcing the state to draw a second majority-Black congressional district would be an “unconstitutional racial gerrymander” because Republicans were entitled to discriminate against Black voters if they argued that their purpose was partisan instead of racist. The Court reaffirmed that position in a subsequent case dealing with Alabama, after a lower court had found ample evidence of deliberate racial discrimination, as opposed to the discriminatory effect of the Louisiana map.
Mullin now sets up an even more impossible double standard. If the government wants to discriminate against Black people, any pretext will do. “As long as there is a plausible basis—any plausible articulable basis—for the government’s action, then the Court will look to that basis as sufficient,” Aderson Francois, a law professor at Georgetown University, told me, “even in the face of evidence that government actors were motivated by animus.” If a Black person wants to prove they’ve been discriminated against, however, no amount of evidence will suffice.
“This Court sees race when it wants to, and blinds itself to racism in most other cases,” Melissa Murray, a law professor at NYU, told me. “It’s hard to imagine how egregious the statement would have to be to be considered ‘overtly racial’.”
This is a “color-blind” Constitution that the architects of Jim Crow could love. Many of the devices employed during segregation, such as poll taxes, grandfather clauses, and literacy tests, were superficially race-neutral. In fact, slavery itself could conceivably be race-neutral—after all, one does not need to be a racist to seek cheap labor for a profitable business!
Alito’s insistence on ignoring the possibility of someone using a pretext to engage in racial discrimination is actually quite selective. In a 2009 case on affirmative action, Ricci v. DeStefano, for example, Alito was happy to dismiss as “pretextual” the city of New Haven’s reasoning for why it threw out test results in which white firefighters performed better than their Black colleagues (it feared a lawsuit). When a Virginia school implemented a race-neutral, class-based affirmative-action policy, however, Alito insisted that the policy was by definition racist because it changed the demographic composition of the student body.
[Peter S. Canellos: How did Samuel Alito become this angry?]
So it’s not that Alito is always against reading motive into potentially racist behavior, or that he opposes looking past a pretextual policy reason for a decision that he sees as racist—as long as the case is one in which white people could be perceived as the victims of racial discrimination.
Francois compared the Roberts Court to the 1880s justices who opened the door to Jim Crow. That Alito “pretended these statements were or could be race-neutral means that in some ways,” the current Court is worse than that earlier one, Francois told me. At least the 19th-century Court had “the intellectual courage to state its racist convictions plainly.”
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