Actual Racism Is Invisible To Sam Alito, Because It’s Just His Own Worldview

from the like-a-fish-in-water dept

A month ago, I wrote that the Supreme Court’s six conservative Justices have exactly one consistent rule on whose votes count: Black people’s votes shouldn’t count. The pattern was simple. If a ruling would help Black votes count, the Court — led by Justice Samuel Alito — found a reason to block it. If it would help suppress the Black vote, that was treated as normal and fine. Indeed, it would be treated by Alito as “race-neutral.”

Now Alito has given us an even starker version of the same instinct, and this time it’s not even about votes. It’s about whether the most openly racist rhetoric imaginable counts as racist at all. To Alito, apparently, it doesn’t — because to Alito, it’s just how the world works.

It’s in the case of Mullin v. Doe, regarding the Trump administration terminating “Temporary Protected Status” (TPS) for hundreds of thousands of Haitians and Syrians. The lower courts had blocked that effort, but Alito leads the MAGA Six in reversing it, and primly insists that there’s simply no evidence at all of any racial motive in ending TPS status for Haitians. If there had been a racial motive, then it could violate the Equal Protection Clause, but Alito insists that it’s not racist to hate Haitians. It’s just normal and “race-neutral.”

The President’s comments fall into four main categories. First, many express strong objections to the immigration that this country has experienced in recent decades and to many of the immigrants who have come here, particularly those who have come to or stayed in the United States illegally. These statements associate these immigrants with crime and other social ills. Second, some statements express great displeasure with TPS. They note, among other things, that TPS designations have often been far from temporary and that aliens who are allowed to stay in the United States under the program are not vetted like other aliens who seek admission. Third, some statements broadly denigrate the countries for which TPS designations have been granted—including Haiti—portraying them as hellish places in which to live. And fourth, some statements malign Haitians who have come to the United States….

…. 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. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race.

Justice Kagan, in her dissent, points out how full of shit Alito is by noting he can’t even bring himself to quote Trump’s vile bigotry, which would immediately broadcast the lie that Alito is pushing: that the ending of TPS for Haitians has nothing to do with race:

Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. (Indeed, one measure of the President’s way of speaking about Haitians is to compare it with the majority’s, which is unfailingly respectful.)

So here are some of those statements. Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].” … And: Haitians are also eating “other things too that they’re not supposed to be.” … And: Haitians in the United States “probably have AIDS.” … And: Haiti is a “shithole country,” which is “filthy, dirty, [and] disgusting.” … And: Haitian immigration is “like a death wish for our country.” … And: Haitians, along with some others, are “poisoning the blood” of our country. … And: “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? “Why cannot we have some people from Norway [and] Sweden?” … The majority briefly replies that those remarks are not “overtly racial,” ante, at 21, but it is hard to know what that means. Haitians are Black. (Norwegians and Swedes not so much.) The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community. No very “sensitive inquiry,” of the kind Arlington Heights compels, is needed to see them for what they are, 429 U. S., at 266; judges, as we often say, are “not required to exhibit a naiveté from which ordinary citizens are free,” Department of Commerce, 588 U. S., at 785. The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

This is how an extreme racist who doesn’t think of himself as one operates. Alito can’t see Trump’s bigotry as racist because he shares the underlying worldview — and a worldview that feels like simple common sense to you doesn’t register as “bias.” That’s not a charitable read of Alito. It’s the least charitable one: the racism is so deeply baked in that it’s become invisible to him, the default setting. He can squint at a “they’re eating the pets” / “they probably have AIDS” / “shithole countries” rant and call “race-neutral” with a straight face.

And here’s the tell that collapses the whole “race-neutral” defense. Alito’s argument depends on the idea that all of this could rest on some neutral, non-racial criterion — poverty, crime, lax vetting, take your pick. But the same administration has built what is effectively a whites-only refugee policy: all but three of the 4,499 refugees admitted under Trump are white South Africans. If the criterion were really poverty or danger or vetting, that is not the population you would end up with. The only criterion that explains both halves — Haitians out, white South Africans in — is the one Alito insists isn’t there.

Adam Serwer, over at the Atlantic, points out that this particular makeup of the Supreme Court has now made it clear: they are so overtly racist that they will never, ever deem anything as racist.

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.

And here’s where it connects back to where I started. That “any pretext will do” logic isn’t new — it’s the exact machinery I described last month in the voting cases. In Louisiana v. Callais, the Court decided that requiring Louisiana to draw a second majority-Black district — so that Black voters could actually elect someone — was itself the real racism. The trick is the off-ramp: a state caught discriminating against Black voters just has to say the magic words “we were being partisan, not racist,” and the Court waves it through.

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.

Well, there is one exception to the idea that “no evidence” will be seen as racism. If a policy is seen as helping minorities, Alito will eagerly claim that’s totally racist.

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.

This is exactly how a racist thinks: any bigotry towards non-whites is normal and good and “race-neutral.” But anything seen as attempting to help fight back against bigotry is unfairly making decisions based on race, and therefore racist.

Indeed, as Serwer quotes law professor Melissa Murray in his piece:

“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’.”

Georgetown law professor Aderson Francois goes further — arguing that Alito’s pretense is in one respect uglier than the Court that ushered in Jim Crow:

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.”

In the meantime, though, many, many thousands of Haitians are going to suffer. So too will the communities where they have integrated and become vital to the local economy. Even Republican Ohio governor Mike DeWine has been calling out how unnecessary, cruel, and damaging this ruling will be to all of Ohio:

“It’s Haitians who many times are taking care of your mom or your dad who has Alzheimer’s, taking care of family members who might be in a nursing home,” DeWine said. “And to say we’re going to pull all those out, it’s just not in our own self-interest.”

History will not be kind to Samuel Alito. He is already widely viewed as one of the worst Supreme Court Justices, one who is overtly political and regularly engages in obviously biased and partisan judging. But it’s time to stop pretending he’s not driven by a pretty aggressive, extreme, and despicable level of out-and-out racism. It appears to be a key driving force behind his judicial decision making, and it should have no place in modern America.

Once again, it’s time to expand the court to at least 100 Justices, so that no single Justice — such as the overtly racist Samuel Alito — has as much power as he does. Yes, it’s true that the other MAGA five have no problem going along with and enabling Alito’s brand of racism, which many of them may harbor as well. But the fact that Alito’s name keeps appearing on so many of these blatantly racist decisions needs to be called out as an example of how broken the Supreme Court is.

Filed Under: elena kagan, haiti, mullin v. does, race neutral, racism, samuel alito, tps