The Court That Will Believe Absolutely Anything Is ‘Race-Neutral’ - The Atlantic

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.”<br>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.<br>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.<br>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.<br>Adam Serwer: The Supreme Court has invented a right to discriminate<br>“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.”<br>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.”<br>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.”<br>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.<br>In his opinion, Alito notes that the administration had previously eliminated TPS protections for...