As the Fourth Circuit prepares to hear oral argument en banc tomorrow about the Trump Administration’s Muslim ban, it should pay careful attention to a subtle but significant citation in the United States’ brief: Palmer v. Thompson.  This goes to the heart of the issue of whether and how to establish that the Trump administration acted with discriminatory intent.

Palmer was a Supreme Court decision involving the segregation of public pools by the City of Jackson, Mississippi in 1962.  In a nutshell, rather than comply with a federal court order to integrate (eight plus years after Brown v. Board), the City closed the pools entirely -- shuttering four out of five facilities outright and relinquishing the lease on a fifth.  A district court “found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis.”  The Supreme Court affirmed in a deeply divided 5-4 decision. The majority essentially refused to consider why the City had closed the pools on the grounds that “it is extremely difficult for a court to ascertain the motivation . . . behind a legislative enactment” and it might be “futil[e to strike down such legislation since] . . . it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.”

The Trump administration now favorably cites Palmer in support of the proposition that “[s]earching for governmental purpose outside the operative terms of governmental action and official pronouncements is fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task “extremely difficult” (pp. 46-47).  A materially identical passage and citation arose a few weeks ago in the DOJ’s filing in Hawaii (p. 42).  So while the references to Palmer are clearly not accidental, they are troubling for three key reasons:

First, it is stunning to see the Department of Justice approvingly cite a case that at best allowed pretextual measures for avoiding racial integration -- and, more realistically, facilitated segregation by turning a blind eye to what was clearly going on in the City of Jackson.  Is it really the position of the United States in 2017 -- either legally or morally -- that cities need not integrate whites-only pools and can instead close down public facilities altogether?  If so, then that is jaw-dropping and wrong.  If not, then the Department should not be relying upon Palmer in the first place.  All of this is somewhat evocative of a recent brief by the state of Kansas favorably citing Dred Scott-- a move that quickly went viral, was widely condemned, and prompted a formal withdrawal and apology by the Kansas Attorney General.  DOJ should consider a similar correction in this case.

Second, it is hard to see how Palmer remains good law and it was thinly reasoned at the time, drawing several powerful opinions by the four dissenters.  Justice White explained that “[c]losing pools to prevent interracial swimming is little different from laws or customs forbidding Negroes and whites from eating together or from cohabiting or intermarrying.”  Moreover, he pointed out that “motivation analysis has assumed great importance” in section 1983 litigation and that the Court had previously rebuffed the sorts of vague and dubious justifications the City offered about “preserving the peace.”  Justice Marshall flatly rebuffed the majority’s logic that the pool closures had a “facially equal effect upon all citizens” and made clear that since Brown, schools and pools “have received identical Fourteenth Amendment protection.”  The majority opinion, he concluded, was “effectively removing publicly owned swimming pools from the protection of the Fourteenth Amendment . . . [and] turn[ing] the clock back 17 years.”  Justice Douglas stressed that the closure of the pools actually aimed to teach “Negroes a lesson: In Jackson the price of protest is high.”

Third, the broader implications of endorsing Palmer are also disconcerting.  While Palmer involved swimming pools (a location with a uniquely problematic history, pp. 16-18), its logic, if sustained, could presumably apply to other sorts of public facilities and actions.  For instance, the Trump Administration could halt the next large protest like the Women’s March by simply closing all the national parks for the month, including the Mall -- and then claiming Palmer insulates it from having to explain its rationale or defend against a constitutional challenge.  Alternatively, under the rationale of Palmer, a municipality could avoid complying with Obergefell’s ruling on same-sex marriages by eliminating the issuance or recognition of new marriage licenses altogether.   That cannot be right, in no small part because it would be a recipe for constitutional circumvention.  Indeed, Justice Douglas recognized just this sort of perilous trajectory in his dissent: “May a State in order to avoid integration of the races abolish all of its public schools? That would dedicate the State to backwardness, ignorance, and existence in a new Dark Age.”

All told, by apparently resuscitating Palmer, the Trump Administration relies upon an odious and obsolete decision in the hopes of finding another way to categorically insulate its intent in effectuating the Muslim ban.  For starters, that should invite the Fourth Circuit to press the Government about the implications and extent of it position -- and in the end, the judges should make clear that Palmer has no place in this case or in anti-discrimination law today.

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