The Supreme Court’s 5–4 decision on Thursday preserving DACA was a remarkable blow to President Donald Trump. Chief Justice John Roberts’ majority opinion found that the Trump administration illegally cut corners in its rush to repeal the program, using dubious justifications to avoid political accountability. At the same time, however, Roberts, flatly rejected the argument that DACA rescission was motivated by illicit racial animus; only Justice Sonia Sotomayor supported the claim. The chief justice’s cursory dismissal of Trump’s alleged racism will make it extremely difficult, if not impossible, to challenge federal policy rooted in bigotry.
It is a basic principle of equal protection that the government cannot make decisions on the basis of racism. The Supreme Court has developed a test to determine when “invidious discriminatory purpose was a motivating factor” in an official action. Among other things, this test asks whether the action had a disproportionate impact on a particular group or emerged from some suspicious, unusual procedure; it also examines “contemporary statements” by the decisionmakers. The plaintiffs opposing DACA repeal argued that the Trump administration’s actions satisfy this test. Trump, after all, has made numerous racist remarks. Rescinding DACA would disproportionately affect Latinos. And, as Roberts acknowledged, the administration’s efforts to wind down the program were irregular at best.
Yet in a two-page section tacked on to the end of his opinion, the chief justice totally dismissed the plaintiffs’ equal protection argument. Roberts didn’t just rule that there was no equal protection violation. He wrote that the plaintiffs failed to even “raise a plausible inference” of discrimination, denying them the opportunity prove their theory as the lower courts implement Thursday’s ruling. The chief justice could have simply said there is insufficient evidence at this stage. Or he could’ve ignored the matter altogether since he already blocked repeal on different grounds. Instead, Roberts threw out these equal protection claims before the plaintiffs had a chance to develop them fully, preventing lower courts from fleshing them out.
Why was Roberts so convinced there were no signs of animus? He gave three reasons. First, “because Latinos make up a large share of the unauthorized alien population,” the chief justice wrote, “one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.” Second, “there is nothing irregular about the history leading up to the September 2017 rescission.” Third, Trump’s racist comments “are unilluminating,” because they were “remote in time and made in unrelated contexts.”
We already knew that Roberts thinks racism is basically over in America. But remarkably, Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined this section without a peep of dissent. Only Sotomayor refused to go along with it. In a separate opinion, Sotomayor ran through Trump’s repeated attacks on Mexican immigrants as “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, rapists.” She also pointed out his description of unauthorized immigrants as “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS13.”
These comments, Sotomayor wrote, were not “unilluminating,” “remote in time,” or “unrelated” to immigration. Rather, “they bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA.” Moreover, Trump was notoriously inconsistent about repealing the program: As late as June 2017, his administration said it was committed to maintaining it. Then, abruptly, it reversed course in the fall, when then-Attorney General Jeff Sessions delivered a speech full of nativist lies.
When combined with the disparate impact of DACA repeal on Latinos, Sotomayor concluded, Trump’s epithets and about-face could create the appearance that the president’s goal was to harm Latinos. “Only by bypassing context,” she wrote, “does the plurality conclude otherwise.”
It’s no surprise that Sotomayor, who is more attuned to racial injustice than her colleagues, dissented from Roberts’ “blinkered” assessment of Trump’s actions. But it’s mystifying that her fellow liberals went along with Roberts’ erasure. As Harvard Law Professor Niko Bowie noted, Roberts’ holding could make future equal protection challenges to federal policy “next to impossible.” If the facts here are insufficient to raise even the possibility of racism, it’s difficult to see what this court would view as proof of racism. Today, few bigots in public office openly declare their prejudices. But Trump has done exactly that, and it still wasn’t enough for the chief justice to see any evidence of animus.
Perhaps Ginsburg, Breyer, and Kagan truly believe that Trump would never alter immigration laws to harm Latinos. But in 2018’s Trump v. Hawaii, those same justices found that Trump had altered immigration laws to harm Muslims. What changed? For one thing, Roberts voted with the conservatives in Hawaii, leaving the liberals free to air their grievances. Perhaps this time around, Ginsburg, Breyer, and Kagan figured that joining Roberts’ “no racism here!” bit was a necessary compromise to keep the chief justice on DACA’s side. If so, that trade-off still does real damage to equal protection law, essentially shielding executive officials from charges of racism unless they are foolish enough to shout their bigoted intentions from the rooftops.
Thursday’s decision further enshrines into law Roberts’ presumption that public officials, from the president on down, are acting in good faith when they strip rights from racial minorities. That presumption may not be a huge problem when Trump is too incompetent to follow the rules. But it may prove dangerous when a more competent future demagogue enacts policies that are legal on their face yet rooted in bigotry that the courts, thanks to Roberts, have no choice but to ignore.
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