Supreme Court Rules Racist Intent Doesn't Invalidate Policy

The decision fits a broader pattern from the Roberts Court. In May's Louisiana v. Callais, the Court ruled that requiring Louisiana to draw a second majority-Black congressional district was an unconstitutional racial gerrymander. Alito argued that Republicans were entitled to discriminate against Black voters if they said their purpose was partisan. In the 2009 case Ricci v. DeStefano, Alito dismissed as pretextual the city of New Haven's explanation for throwing out firefighter promotion tests on which white candidates outperformed Black colleagues. When a Virginia school adopted a race-neutral, class-based affirmative action policy that changed the student body's demographics, Alito insisted the policy was by definition racist.

Melissa Murray, a law professor at NYU, told me: “This Court sees race when it wants to, and blinds itself to racism in most other cases. It’s hard to imagine how egregious the statement would have to be to be considered 'overtly racial.'”

Alito noted that the administration had eliminated TPS protections for countries across Africa and Asia. “Most would regard this as a racially diverse group,” he wrote, as if discriminating against all nonwhite people does not count as racism. The administration has implemented what critics call a whites-only refugee policy that accepts solely South Africans of European descent. Trump has said immigrants from Africa and Asia have “bad genes” and are “poisoning the blood of our country.” After the ruling, White House adviser Stephen Miller celebrated: “We can finally remove these Haitian illegal migrants.”

Francois compared the current Court to the 1880s justices who opened the door to Jim Crow. “At least the 19th-century Court had the intellectual courage to state its racist convictions plainly,” he said.