Jurisprudence

The Roberts Court Is Considering the Legal Reasoning of Jim Crow to Uphold a Rigged Census

Chief Justice John Roberts.
Chief Justice John Roberts.
Photo illustration by Slate. Photo by Win McNamee/Getty Images.

There’s an odious Supreme Court case from 1971, Palmer v. Thompson, that most people don’t remember and that most who do remember wish they could forget. It’s a relic of a bygone era—one of the last pieces of the Jim Crow system that the Supreme Court ever sustained.

On our current Supreme Court, Palmer v. Thompson looks to be having a moment. Its reasoning stealthily drove last year’s decision in Trump v. Hawaii, in which the court’s five-justice conservative majority upheld the travel restrictions that the president had planned during the campaign to be a “Muslim ban.” And this week’s oral arguments in the census case suggest that four of the conservative justices who upheld that pretextual ban—and the fifth conservative who replaced Anthony Kennedy—are poised to use the reasoning of both Palmer and that travel ban decision to endorse the administration’s tactic of forcing people to reveal their citizenship status if they simply want to be counted as present in the country.

How could a late-stage Jim Crow decision be wreaking such havoc in the 21st century?

Palmer v. Thompson was about a particular racist notion that surfaced in white people in the American South at the idea of being in the water with black people. As late as 1963, the city of Jackson, Mississippi, ran five public pools, all of them for whites only. A lawsuit led a federal judge to declare that black people had the constitutional right to unsegregated use of the city’s pools. Jackson’s political leaders responded not by integrating the pools but by closing them.

It was a devilish move that packaged Jackson’s racism in neutral wrapping paper. Closing the pools wasn’t racist, the city argued; it applied equally to everyone. Nobody—black or white—would any longer be able to beat the heat of a Mississippi summer in a Jackson municipal swimming pool.

Justice William O. Douglas saw the devil in the move: A city can close its pools, he reasoned, but not “for the purpose of perpetuating or installing apartheid.” Justice Byron White agreed. “Shutting down the pools,” he argued, “was nothing more or less than a most effective expression of official policy that Negroes and whites must not be permitted to mingle together.”

But their views did not prevail. Justice Hugo Black, writing for a bare majority of five, upheld the city’s decision to shut the pools rather than integrate them. Jackson’s lawyers had come into court arguing that the city closed the pools for administrative, not racial, reasons: It would be too costly to run integrated pools, the city argued, and too unsafe. Justice Black credited those rationalizations. Where a law treats both races equally, as the closure of the pools purportedly did, “the motivations of the men who voted for it” cannot undermine the law’s neutrality.

Black also wrote that “it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment.” It is hard not to burst out laughing at this assertion in the context of 1960s Mississippi.

Now, improbably, Palmer v. Thompson is back.

Consider this week’s oral argument in the census case, Department of Commerce v. New York. The census has many uses, but the most important—the one listed in the Constitution—is the “actual enumeration” of all the people in the country. The census tally drives legislative apportionment, and legislative apportionment drives our democracy. Getting the numbers right is crucial because the tally is enduring. The count won’t happen again for a decade.

A Commerce Department intent on getting the numbers right would work to remove barriers to participation in the census rather than build them. But this administration’s Commerce Department intends to ask all respondents whether they are U.S. citizens, something it hasn’t done since 1950. It intends to do this in a climate of concern, even turmoil, over the presence and status of immigrants, especially Hispanic immigrants, in the United States. The president wants to wall off the southern border. Deportation numbers are soaring, and families are being broken apart. The government’s own evidence estimates that the citizenship question will deter between 6 million and 7 million people from responding to the census. And that undercount won’t be politically neutral: Far more of the millions deterred will live in Democratic than Republican areas. That’s the reality.

Enter the reasoning of Palmer v. Thompson. The citizenship question, the claim goes, has a purpose other than deterring immigrants from responding. That’s what the government’s lawyer told the Supreme Court this week. The reason for asking about citizenship, said Solicitor General Noel Francisco, was that the data would help the Justice Department enforce a voting rights law, by supplying a number needed for the calculation of something called “citizen voting age population,” or CVAP, that experts are often called on to testify about. There are other sources for the “citizen” piece of the CVAP than the census, but the Commerce Department thinks it would be convenient to use the census to gather the data.

This explanation received a warm embrace from justices in the Supreme Court’s conservative majority. “The CVAP … is the critical element in voting rights enforcement,” said Chief Justice John Roberts in pressing a lawyer challenging the citizenship question, as if the existence of some legitimate factor could paper over the reality of the question’s response-suppressing tendencies. Questions with similarly credulous premises came from Justices Samuel Alito and Neil Gorsuch. Observers came away from the argument predicting that the court will allow the citizenship question—in the face of the obvious undercounting of millions (in Democratic-leaning districts).

If there’s a facially legitimate reason for an action that will disadvantage those without power—even if it’s not a genuine reason and even if it’s concocted after the fact—that is enough. Actual motivations be damned.

This was precisely the reasoning of the conservative five-justice majority in last year’s Trump v. Hawaii decision. The issue there was the legality of the order halting immigration by travelers from a list of Muslim-majority countries. The president had called for a “complete and total shutdown of Muslims entering the United States” on the campaign trail. He repeated this sort of rhetoric across the whole campaign and after taking office. His focus on and animus toward Muslims were unmistakable, and the five-justice majority that upheld his actions did not even try to deny them.

But again, enter Palmer v. Thompson. The president’s subjective motivations did not undermine the legality of his order because his lawyers managed to cast its provisions in neutral terms that did not single out Muslims as such. The administration added a couple of non–Muslim-majority countries, like North Korea and Venezuela, to the list of affected nations, and said that what got a country on or off the list was not the religion of its population but the quality of certain security-vetting procedures on the ground. It was this veneer of neutrality, rather than the litany of anti-Muslim statements coming from the president’s mouth and Twitter account, that commanded the majority’s attention. “The issue before us,” said the chief justice, was “not whether to denounce the statements.” Rather, the justices in the majority chose to decide whether to credit the surface neutrality of the president’s order.

Credit it they did. Just as they appear poised to credit a pretextual defense of the census question.

And just as a bare majority, in an earlier day, accepted the ludicrous notion that the city of Jackson, Mississippi, closed its pools to save money rather than to keep black people from swimming with white people.

If Palmer v. Thompson stands for anything in our world today, it should stand as a reminder of the evil that can thrive when credulous courts look the other way. Its revival should worry us all.