For all who observe the U.S. Supreme Court, this last term was a sad spectacle. People can debate which decision was the worst. The Louisiana v Callais case that gutted the Voting Rights Act has to rank near the top of the list but I would suggest a different decision. In the case of Mullin v Doe, the Supreme Court gave the Trump regime permission to deport thousands of Haitians and Syrians who were in Temporary Protected Status.
TPS has existed to prevent people from being deported into dangerous conditions. Under TPS, the Department of Homeland Security provided legal status to citizens of countries that were unsafe due to armed conflict, natural disasters or other “extraordinary and temporary” conditions.
The Supreme Court decision contained no analysis of the safety conditions in either Haiti or Syria. The U.S. State Department website specifies that U.S. commercial flights to and from Port-au-Prince are suspended due to instability and violence. It also advises Americans to “not travel to Syria for any reason” because of violence in the country.
When Congress created TPS in 1990, the idea was to ensure that people would not be deported to places where their safety would be in jeopardy. The Court majority could care less. In a shadow docket decision, they already had green-lighted deportation of migrants to third countries where they had no prior ties.
The things that are wrong in Justice Alito’s majority opinion in the TPS case could include a list but I wanted to focus on its worst aspect, which is its racism. The plaintiffs only had to show a likelihood that racism was one motivating factor in the decision to terminate TPS. Under their equal protection claim, plaintiffs did not have to show racism was the sole, primary or even dominant cause.
The plaintiffs easily showed that racism was a motivating factor. In her dissent, Justice Elena Kagan pointed to Donald Trump’s many statements evincing racial animus. Trump called Haiti a “shithole country.” He claimed Haitians in Ohio “were eating the dogs and eating the cats” of Americans. He accused Haitians of “poisoning the blood” of the nation and he said they probably had AIDS. Kristi Noem, his prior Secretary of Homeland Security, described Haitians as “leeches,” “entitlement junkies” and “foreign invaders.”
Somehow the Supreme Court majority looked at the stereotyping and saw no racism. The Court majority also misapplied the legal standard for equal protection. Not recognizing racism seems dumb for smart people.
Adolf Hitler had said Jews poisoned Germany’s blood and he described Jews as “the perpetual leech.” I guess this was not racist either. These justices are making racism legal. Justice Alito could not bring himself to include Trump’s many racist statements in his majority opinion. We are supposed to pretend these words were never said.
Racism thrives on silent acquiescence. The Supreme Court majority is giving the government permission to be racist. They are giving their blessing to racism and this is nothing new where the Supreme Court is concerned. Before the Civil War, the Supreme Court acted to protect the right of slaveowners and denied all rights to those enslaved. This was best demonstrated by the Dred Scott decision where the Court ruled Black people, either enslaved or free, were not U.S. citizens.
The Court’s record did not improve after the Civil War. In spite of the passage of the Thirteenth, Fourteenth and Fifteenth Amendments, the Court failed to do anything to advance racial equality for almost 90 years. There are so many cases that could be cited to back up this assertion. In the Civil Rights cases in 1883, the Court stripped the federal government of its power to protect black Americans from private racism, setting the stage for Jim Crow laws. Then in 1896, in Plessy v Ferguson, the Court upheld “separate but equal.”
Unfortunately, Plessy v Ferguson was not an isolated decision. Until Brown v Board of Education in 1954, the Court continuously defended an American apartheid. During all the years when thousands of black people were being lynched in the South, the Supreme Court said nothing. There was only one case in the years between 1877 to 1950, that the Supreme Court addressed the mob lynching of a black man. That case was the 1906 case of United States v Shipp.
In that case, a Black man named Ed Johnson in Chattanooga Tennessee was falsely accused and convicted of a rape after a kangaroo court trial. The Supreme Court issued a stay of execution to review his case. A white mob broke into the jail and lynched Johnson on March 19, 1906. The sheriff conspired with the lynch mob. The Supreme Court found the sheriff in contempt. Nine people were ultimately charged and they served sentences of 60 to 90 days in jail. It was the only criminal trial of the Supreme Court in its entire history. Other than that, there was not a peep out of the Court about all the lynchings.
The Warren Court was a brief departure from this racist history when they ruled that separate but equal was not constitutional in public education but that window closed. I would acknowledge there were some very important positive desegregation decisions after Brown.
Since the 1970s, the Court’s view of equal protection has moved backwards whenever minorities have tried to use the law to challenge discrimination. Witness the death of affirmative action and the entirely cramped understanding of equal protection that has evolved from the Court.
The reality is that the U.S. Supreme Court for almost its entire history has reinforced racism. The TPS decision is largely consistent with the long history where the interests of minorities are subordinated to the white power structure.
What is insidious is the disregard for the lives of the many Haitians and Syrians who have built lives in the U.S. doing valuable and needed work in their communities. The TPS decision leaves their lives in limbo. Many employers have fired people who have been lawfully working in the U.S. for years.
The Court could have done so much better.
Jonathan P. Baird lives in Wilmot. He is the author of “Defiance is Beautiful,” which is available now in coming out soon in e-book form.