The Supreme Court’s Green Light to Discriminate

By upholding President Trump’s travel ban, the justices have sent the message that the administration is free to turn prejudice into public policy.

Kevin Lamarque / Reuters

For years, Chief Justice John Roberts has been concerned with the question of prejudice. But it’s not bigotry toward his fellow Americans that has occupied his thoughts—it’s attempts to address the bigotry.

As a young attorney in the Reagan Justice Department, Roberts wrote that amending the Voting Rights Act of 1965 to ban practices that had the effect of discriminating against black voters, and not just those that exhibited such intent, raised “grave constitutional questions.” As chief justice, Roberts asked during oral arguments over Section 5 of  the Voting Rights Act, which targeted states with a demonstrated record of discrimination for heightened review, “Is it the government’s submission that the citizens of the South are more racist than the citizens of the North?” It wasn’t the history of disenfranchising Americans on the basis of race that provoked the chief justice; it was the suggestion that ongoing policies that result in lower rates of black voting might be racist.

He later voted to strike down Section 5 of the the Voting Rights Act without ever specifying what part of the Constitution it violated. “Voting discrimination still exists; no one doubts that,” Roberts wrote. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.”

Bigotry exists. But laws that secure people’s rights against that bigotry are what have occupied Roberts’s concern.

Roberts’s approach to the question of prejudice was perhaps best articulated in his 2007 opinion striking down school-desegregation plans that consider race, in which he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” As long as there is no clear evidence of an intent to discriminate, Roberts argued, discrimination has not taken place, no matter how obvious the impact. But if you acknowledge that a group is being discriminated against and extend it protections or benefits in the process of trying to address that discrimination, that is the real racism. Roberts’s jurisprudence puts into the polite language of the law the belief that accusations of prejudice are worse than prejudice itself.

That philosophy, that addressing bigotry is worse than bigotry, has reached its natural conclusion in Roberts’s opinion upholding President Trump’s travel ban targeting travelers from several mostly Muslim countries. As Roberts acknowledges in his opinion, Trump made no secret of his animus towards Muslims during the campaign, including vowing to ban Muslims from the country entirely, saying “Islam hates us,” and that America has problems “with Muslims coming into the country.” Nevertheless, Roberts argues, because the order itself doesn’t mention Islam, the president’s remarks about the travel ban, and his express intent in imposing it, can be safely ignored.

“The text says nothing about religion,” Roberts writes. “Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.”

Roberts’s logic is baffling. The chief justice argues that since it discriminates against some Muslims, rather than against every Muslim, the order is not motivated by hostility against Muslims. But the order was expressly motivated by anti-Muslim prejudice, and so it enshrines in law official disapproval of a particular religion. Like all other discriminatory policies, once implemented, it directly affects a fraction of the group it targets, while adopting official condemnation of that group. And few deliberately racist policies in American history have lacked for an explanation of why such laws were in the public interest, and many were said to be necessary for public safety.

By Roberts’s logic, cornerstones of Jim Crow law, the grandfather clause, and the literacy test would be entirely constitutional. Grandfather clauses barred people from voting if they could not vote prior to emancipation, but there were free black Americans prior to the abolition of slavery, and there were blacks capable of passing literacy tests in states where those tests were not deliberately impossible to pass. These laws did not affect all black voters, and neither did they explicitly mention race—so, to apply the tests Roberts has proposed, these devices, meant to secure white supremacy in the South after Reconstruction, were not discriminatory.

Whatever message the Court intended to send, the one that Trump and his administration will take from the ruling is that the president is free to implement any discriminatory policy he likes, so long as his advisers launder the president’s bigotries through facially neutral language. Trump has derided Latino immigrants as “rapists” and “criminals” who want to “infest” the country, called Muslims terrorists, and expressed anger about people from “shithole” Caribbean and African countries coming to the United States. Roberts has given Trump a green light to turn his prejudiced sentiments into public policy, provided that he make a minimal effort to veil that prejudice, without fear that the Supreme Court will overturn them.

In addressing the constitutionality of the order, Roberts writes, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.” So the president need not even cease to make bigoted generalizations about religious and ethnic minorities publicly—the high court’s conservative justices will, in evaluating the policies motivated by such prejudices, disregard them, so long as they can find some other superficial basis for their existence.

For a president and administration whose guiding principles have been deliberate cruelty and the fervent, unpersuasive denial of that cruelty, it is a moment to celebrate. Everyone else should understand that when the Trump administration comes for them, America’s highest court will do nothing to stop it.