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.