In a decision allowing the Trump administration to move forward with plans to end humanitarian immigration protection for hundreds of thousands of people living and working in the United States, the majority of justices on the Supreme Court concluded that top officials did not racially discriminate against Haitians. In doing so, the court denied that the administration used racial language to describe such persons. The majority’s narrow characterization of what constitutes a racial description reveals a court wildly out of step with ordinary usage of a key concept that defines modern life around the world.
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The court’s decision in Mullin v. Doe turned back challenges to the Trump administration’s attempts to terminate Temporary Protected Status for Haitian and Syrian citizens. This was for two primary reasons. First, according to the majority, the Immigration and Nationality Act prevented courts from reviewing then-Secretary of Homeland Security Kristi Noem’s decision to end TPS for Syrians and Haitians.
The Haitians also raised a separate constitutional claim that Noem’s decision was tainted by racial animus in violation of the Fifth Amendment’s guarantee of equal protection. “The true reason for the termination … is the President’s racial animus towards non-white immigrants and bare dislike of Haitians in particular,” their lead lawyer, Geoffrey M. Pipoly, told the justices during oral argument in April. He reminded the justices that Trump referred to Haiti as a “shithole country” and claimed Haitians in Ohio were “eating the dogs and eating the cats of Americans.” In his brief, Pipoly added that Trump has accused many migrants, including Haitians, of “poisoning the blood” of the nation. For her part, Noem described Haitians as “leeches,” “entitlement junkies,” and “foreign invaders,” Pipoly wrote.
Although no one denied that Trump and Noem made the comments that the Haitian TPS recipients complained of, the majority of justices disagreed with Pipoly’s characterization of these comments as evidence of racism. Writing on behalf of six members of the court, Justice Samuel Alito explained that none of the comments “was overtly racial.” Instead, considering the comments in the “immigration context,” Alito wrote that “all expressed policy views that could rest on race-neutral justifications.” A person might favor restricting immigration “for economic or other reasons that have nothing to do with race,” he posited. And it’s possible for “a person without racial bias” to “provide a harshly unfavorable description of living conditions” in a country, he added.
In its search for a permissible reason to explain Trump and Noem’s comments about Haitians and Haiti, the majority altered the court’s existing equal-protection doctrine. As Justice Elena Kagan explained, in a dissenting opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, equal protection law “is not in the nature of an ‘either/or’ inquiry. It does not ask a court to identify which is the single cause, or even the primary cause, of an official action.” Instead, it bars governmental decisions in which racial discrimination has been “a motivating factor,” as the court explained in its 1977 decision Village of Arlington Heights v. Metropolitan Housing Development Corporation. The majority claimed to apply Arlington Heights, but under the court’s motivating factor test what actually matters is whether government policy is motivated by racial discrimination, not, as the majority suggests, whether a policy that’s motivated by racial discrimination can also be justified on a non-discriminatory basis.
The majority is certainly free to deviate from the half-century old legal standard announced in Arlington Heights, but in its effort to sanitize Trump and Noem’s comments it also took leave from standard English. Alito did not claim that Trump and Noem’s comments were not racist. He instead denied that their comments were “overtly racial.” While the noun “racist” describes a person or thing that promotes an ideology of racial superiority, “racial” is an adjective that simply refers to categorizations by race. Racial diversity, for example, describes variation among racial groups, just as racial discrimination means discrimination based on race. For Alito to write that Trump and Noem’s statements were not “overtly racial” is to claim that they didn’t openly describe racial groups.
But, to dismiss the racial overtones of Trump and Noem’s comments, the majority had to strip their words of key historical context that matters just as much as the immigration policy context that the justices incorporated. Accusations of blood poisoning have a long history in racist discourse. Most notoriously, Hitler wrote that a Jew “poisons the others’ blood, but preserves his own.” Hitler also described Jews as “the perpetual leech” and a “veritable leech.” Even assuming that Trump and Noem were entirely unaware of such language (Trump said in 2023 that he had never read Mein Kampf), concluding that their words don’t even describe race also requires ignoring how race and racism are commonly understood across the world today.
Just two weeks after the court issued its decision in Mullin, a global scandal illustrated that Alito’s peculiar assessment of which words openly describe racial groups is out of step with contemporary conceptions of race and racism. On July 4, Paraguayan Senator Celeste Amarilla described soccer superstar Kylian Mbappé, a French citizen who plays for France’s national team, as “ugly” and a “colonized Cameroonian, trying hard to be French.” Displeased that Mbappé had led France’s team to victory against Paraguay in the World Cup, Amarilla described him as a “brute who didn’t even learn to write, who sucked on coconuts instead of drinking mother’s milk, and whose most educated instructors were chimpanzees.”
As a Black man whose father is from Cameroon and mother from Algeria, Mbappé has previously been the target of racial abuse. But coming in the midst of the most popular sporting event on the planet, Amarilla’s barbs received a lot of attention. Had anyone been looking for a plausible explanation that strips her words of their racist baggage, it wouldn’t be hard to imagine various options. To say someone looks ugly could be interpreted as nothing more than an “unfavorable description” – to borrow Alito’s words – of a person’s physical appearance. Crude perhaps, but the ordinary result of individualized subjective preferences. Likewise, Amarilla might have used “colonized Cameroonian” to refer to the historical fact that Cameroon was once colonized by France and Britain. This was an “unquestionably difficult” moment in history, but it can be explained away as having “nothing to do with race” – to again borrow from Alito.
Similarly, Amarilla might be accused of pretending to know more than she does about the newborn Mbappé’s diet, but plenty of people enjoy coconuts regardless of their race. “Many Americans of all races would surely find” feeding coconuts to newborns “intolerable. But poverty and deprivation” – which Alito says “could” concern Trump and Noem, just like dietary choices concern Amarilla – “are no reflection on character,” as Alito wrote to explain away the racialized valence of Trump and Noem’s comments.
Despite the existence of possible “race-neutral justifications” for Amarilla’s comments about Mbappé, no one suggested that her words were not racial. On the contrary, most commentators described them as more than that. Mbappé declared Amarilla’s comments to be an example of “racisme décomplexé”, unashamed racism. The conservative French newspaper Le Figaro and the French soccer association agreed that her comments were racist. Siding with Mbappé, French President Emmanuel Macron described Mbappé’s response as a goal “[a]gainst racism.” Paraguay’s Senate adopted a formal declaration rejecting Amarilla’s “discriminatory and racist expressions.” The Canadian Broadcasting Corporation preceded stories about this event with cautionary bolded text that leaves clear its characterization of Amarilla’s comments: “Warning: This story contains racist and graphic language.” In the United States, the Washington Post described Amarilla’s “racist comments” as a form of racial abuse.
This stands in stark contrast to the majority’s understanding of Trump and Noem’s comments. Having declared that these comments were not openly racial, the majority was able to avoid grappling with the constitutional question that the Haitian challengers raised – that these statements proved that the Trump administration terminated TPS for Haitians because of racial discrimination. If a comment doesn’t describe race, it can’t be said to serve as the necessary precursor to illegally discriminating on the basis of race.
Alito’s decision to focus on whether Trump and Noem’s comments can be described as “racial” thus immunizes the administration here. But it does so at the expense of the court’s waning public perception. Rather than appearing to grapple with complicated legal questions, the majority opinion creates the appearance of a court willing to bend ordinary language and close its eyes to common conceptions of what weight words carry in the world today.
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