//  6/24/20  //  Commentary

Last Thursday, the Supreme Court invalidated the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) program. The Court’s action prevents, for now, the deportation of 700,000 noncitizens, known as Dreamers, who were brought to the United States as children. The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses.

But the price of that victory was a defeat for the Constitution’s guarantee of equal protection. The Dreamers only won on technical grounds, allowing the Administration to try again. Seeking a more definitive victory, the Dreamers had also argued the Trump Administration’s action was unconstitutional because it was motivated by racial hostility. Although it was not necessary to reach the issue, Chief Justice Roberts went out of his way to exonerate the Administration of discriminatory animus and shrug off President Trump’s lengthy catalogue of biased remarks against Mexicans and Latinos.

As a result, the DACA case could narrow the reach of anti-discrimination law, impairing current efforts to reckon with our nation’s long history of racial inequality.

President Trump’s statements that Mexican immigrants are “criminals,” “drug dealers,” “rapists,” and “bad hombres,” and his preference for immigrants from countries like Norway, are well-known. Rescinding DACA targeted Latinos: 78% of DACA recipients are of Mexican origin. And the fact that the Administration’s justifications for rescinding DACA were, as the Court found, so contrived, suggests that some other motivation, like racial animus, drove the action.

Nobody asked the Supreme Court to determine whether this evidence proved discrimination. The only question was whether racism was a sufficiently plausible motive that plaintiffs would be allowed to gather more evidence. A 1977 decision, Arlington Heights v. Metropolitan Housing Development Corporation, held that courts must undertake a “sensitive inquiry” into all direct and circumstantial evidence of discrimination in equal protection cases. The explicitly biased statements of lawmakers are “highly relevant” to this inquiry.

Yet the Chief Justice found the evidence of President Trump’s anti-Latino statements to be “unilluminating.” He reasoned that the President’s statements were irrelevant because lower-level administration officials had not made any biased statements. This ignores the President’s campaign promise to end DACA and his repeated assertions that he was the one making this decision. The Chief Justice also saw President Trump’s statements as too attenuated from the decision to rescind DACA. But many of those statements had been made in the context of discussions about immigration policy, Trump’s marquee campaign issue.

Only Justice Sotomayor dissented on this point. The other justices weren’t willing to take President Trump literally or seriously.

This unwillingness to acknowledge explicit animus is part of a broader pattern. In Trump v. Hawaiithe Supreme Court rejected a constitutional challenge to President Trump’s travel ban, despite his having characterized it as a “Muslim ban” during his campaign, and his having made numerous anti-Muslim statements. The Court was resistant “to probe the sincerity of the justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office.” It is as though the justices imagined that the oath of office magically transformed President Trump into someone committed to upholding the Constitution.

Unfortunately, unwillingness to see even the most obvious and explicit forms of bias is not a phenomenon limited to the Supreme Court. Some lower courts have developed a “stray remarks doctrine,” that stops juries from hearing evidence of racist and sexist comments in employment discrimination cases. The resistance to acknowledging explicit bias may be rooted in the concern that calling someone a bigot does more harm than actual bigotry that perpetuates racial injustice.

The Supreme Court’s stingy application of Arlington Heights and its hyper-technical view of what counts as relevant evidence of discrimination could have damaging implications. Arlington Heights played a crucial role in landmark lower court decisions identifying race discrimination. These include Floyd v. New York, which held that the New York Police Department’s notorious stop-and-frisk policy was racially discriminatory, and NAACP v. McCrory, which invalidated a North Carolina elections bill passed with the intent to disenfranchise African American voters. Both cases relied on explicit statements of discriminatory intent.

The DACA decision has given Dreamers new hope. That is worth celebrating. But the decision is also a warning that we cannot expect this Supreme Court to safeguard the right to equality, nor can we presume it is above the political fray. If we want a government that is devoted to the Constitution’s guarantee of equal protection, there is no alternative to the ballot box.

Jessica A. Clarke is a Professor of Law at Vanderbilt University and author of Explicit Bias, published in the 2018 Northwestern University Law Review.

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Gerstein Harrow LLP

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