{"id":477,"date":"2026-08-04T13:40:00","date_gmt":"2026-08-04T13:40:00","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=477"},"modified":"2026-08-04T13:40:00","modified_gmt":"2026-08-04T13:40:00","slug":"when-the-court-denies-racism-that-others-see","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=477","title":{"rendered":"When the court denies racism that others see"},"content":{"rendered":"
\n

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\u2019s 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.<\/p>\n

Read more Why timing matters in the mail-in voting dispute<\/a><\/p>\n

***<\/p>\n

The court\u2019s decision in Mullin v. Doe<\/em> turned back challenges to the Trump administration\u2019s 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\u2019s decision to end TPS for Syrians and Haitians.<\/p>\n

The Haitians also raised a separate constitutional claim that Noem\u2019s decision was tainted by racial animus in violation of the Fifth Amendment\u2019s guarantee of equal protection. \u201cThe true reason for the termination \u2026 is the President\u2019s racial animus towards non-white immigrants and bare dislike of Haitians in particular,\u201d their lead lawyer, Geoffrey M. Pipoly, the justices during in April. He reminded the justices that Trump referred to Haiti as a \u201cshithole country\u201d and claimed Haitians in Ohio were \u201ceating the dogs and eating the cats of Americans.\u201d In his , Pipoly added that Trump has accused many migrants, including Haitians, of \u201cpoisoning the blood\u201d of the nation. For her part, Noem described Haitians as \u201cleeches,\u201d \u201centitlement junkies,\u201d and \u201cforeign invaders,\u201d Pipoly .<\/p>\n

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\u2019s 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 \u201cwas overtly racial.\u201d Instead, considering the comments in the \u201cimmigration context,\u201d Alito wrote that \u201call expressed policy views that could rest on race-neutral justifications.\u201d A person might favor restricting immigration \u201cfor economic or other reasons that have nothing to do with race,\u201d he posited. And it\u2019s possible for \u201ca person without racial bias\u201d to \u201cprovide a harshly unfavorable description of living conditions\u201d in a country, he added.<\/p>\n

In its search for a permissible reason to explain Trump and Noem\u2019s comments about Haitians and Haiti, the majority altered the court\u2019s 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 \u201cis not in the nature of an \u2018either\/or\u2019 inquiry. It does not ask a court to identify which is the single cause, or even the primary cause, of an official action.\u201d Instead, it bars governmental decisions in which racial discrimination has been \u201ca motivating factor,\u201d as the court explained in its 1977 decision Village of Arlington Heights v. Metropolitan Housing Development Corporation<\/em>. The majority claimed to apply Arlington Heights<\/em>, but under the court\u2019s motivating factor test what actually matters is whether government policy is motivated by racial discrimination, not, as the majority suggests, whether a policy that\u2019s motivated by racial discrimination can also be justified on a non-discriminatory basis.<\/p>\n

The majority is certainly free to deviate from the half-century old legal standard announced in Arlington Heights<\/em>, but in its effort to sanitize Trump and Noem\u2019s comments it also took leave from standard English. Alito did not claim that Trump and Noem\u2019s comments were not racist. He instead denied that their comments were \u201covertly racial.\u201d While the noun \u201cracist\u201d describes a person or thing that promotes an ideology of racial superiority, \u201cracial\u201d 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\u2019s statements were not \u201covertly racial\u201d is to claim that they didn\u2019t openly describe racial groups.<\/p>\n

But, to dismiss the racial overtones of Trump and Noem\u2019s 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 \u201cpoisons the others\u2019 blood, but preserves his own.\u201d Hitler also described Jews as \u201cthe perpetual leech\u201d and a \u201cveritable leech.\u201d 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\u2019t even describe race also requires ignoring how race and racism are commonly understood across the world today.<\/p>\n

Read more States challenging executive order on mail-in voting ask justices to leave in place limits on its implementation<\/a><\/p>\n

Just two weeks after the court issued its decision in Mullin<\/em>, a global scandal illustrated that Alito\u2019s 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 Mbapp\u00e9, a French citizen who plays for France\u2019s national team, as \u201cugly\u201d and a \u201ccolonized Cameroonian, trying hard to be French.\u201d Displeased that Mbapp\u00e9 had led France\u2019s team to victory against Paraguay in the World Cup, Amarilla described him as a \u201cbrute who didn\u2019t even learn to write, who sucked on coconuts instead of drinking mother\u2019s milk, and whose most educated instructors were chimpanzees.\u201d<\/p>\n

As a Black man whose father is from Cameroon and mother from Algeria, Mbapp\u00e9 has previously been the target of racial abuse. But coming in the midst of the most popular sporting event on the planet, Amarilla\u2019s barbs received a lot of attention. Had anyone been looking for a plausible explanation that strips her words of their racist baggage, it wouldn\u2019t be hard to imagine various options. To say someone looks ugly could be interpreted as nothing more than an \u201cunfavorable description\u201d \u2013 to borrow Alito\u2019s words \u2013 of a person\u2019s physical appearance. Crude perhaps, but the ordinary result of individualized subjective preferences. Likewise, Amarilla might have used \u201ccolonized Cameroonian\u201d to refer to the historical fact that Cameroon was once colonized by France and Britain. This was an \u201cunquestionably difficult\u201d moment in history, but it can be explained away as having \u201cnothing to do with race\u201d \u2013 to again borrow from Alito.<\/p>\n

Similarly, Amarilla might be accused of pretending to know more than she does about the newborn Mbapp\u00e9\u2019s diet, but plenty of people enjoy coconuts regardless of their race. \u201cMany Americans of all races would surely find\u201d feeding coconuts to newborns \u201cintolerable. But poverty and deprivation\u201d \u2013 which Alito says \u201ccould\u201d concern Trump and Noem, just like dietary choices concern Amarilla \u2013 \u201care no reflection on character,\u201d as Alito wrote to explain away the racialized valence of Trump and Noem\u2019s comments.<\/p>\n

Despite the existence of possible \u201crace-neutral justifications\u201d for Amarilla\u2019s comments about Mbapp\u00e9, no one suggested that her words were not racial. On the contrary, most commentators described them as more than that. Mbapp\u00e9 declared Amarilla\u2019s comments to be an example of \u201cracisme d\u00e9complex\u00e9\u201d, unashamed racism. The conservative French newspaper Le Figaro<\/em> and the French soccer association agreed that her comments were racist. Siding with Mbapp\u00e9, French President Emmanuel Macron described Mbapp\u00e9\u2019s response as a goal \u201c[a]gainst racism.\u201d Paraguay\u2019s Senate adopted a formal declaration rejecting Amarilla\u2019s \u201cdiscriminatory and racist expressions.\u201d The Canadian Broadcasting Corporation preceded stories about this event with cautionary bolded text that leaves clear its characterization of Amarilla\u2019s comments: \u201cWarning: This story contains racist and graphic language.\u201d In the United States, the Washington Post described Amarilla\u2019s \u201cracist comments\u201d as a form of racial abuse.<\/p>\n

This stands in stark contrast to the majority\u2019s understanding of Trump and Noem\u2019s 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 \u2013 that these statements proved that the Trump administration terminated TPS for Haitians because of racial discrimination. If a comment doesn\u2019t describe race, it can\u2019t be said to serve as the necessary precursor to illegally discriminating on the basis of race.<\/p>\n

Alito\u2019s decision to focus on whether Trump and Noem\u2019s comments can be described as \u201cracial\u201d thus immunizes the administration here. But it does so at the expense of the court\u2019s 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.<\/p>\n

Read more Born free and equal<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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. 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