San Francisco Chronicle - (Sunday)
High court treads carefully on racial issues
As police killings and public protests push racial issues to the forefront of the national debate, the U.S. Supreme Court is quietly shuttling questions of race to its back burner.
The leading example was the June 18 DACA ruling, in which President Trump’s attempt to cancel Barack Obama’s 2012 program allowing young undocumented immigrants to live and work in the United States was blocked by a 54 majority, on the grounds that the administration had failed to explain its reasons. In the lead opinion, Chief Justice John Roberts — joined by three of the court’s more liberal justices — said Trump’s past denigration of Mexican immigrants as “rapists” and “drug dealers” was irrelevant to the case.
The statements, mostly during the 2016 campaign, were “remote in time and made in unrelated contexts,” Roberts said, and were not uttered by the administration officials who actually ordered an end to Deferred Action for Childhood Arrivals in 2017. Only Justice Sonia Sotomayor disagreed, saying the insults showed an immigration viewpoint that was a “keystone of President Trump’s campaign and a policy priority of his administration” and should be considered by courts reviewing any renewed attempt to repeal DACA.
It was reminiscent of Roberts’ 54 ruling in June 2018 upholding Trump’s ban on most U.S. travel from a group of predominantly Muslim countries. In rejecting a claim of religious discrimination, Roberts discounted Trump’s campaign pledge to ban all immigration by Muslims, his assertion that “Islam hates us” and his reference to his initial 2017 order as a “Muslim ban.”
“The issue before us is not whether to denounce the statements” but only whether the president’s broad authority over national security authorized travel restrictions that did not explicitly refer to religion, the chief justice said. He also noted that Trump’s order allowed consular officials to grant individual visas in hardship cases, although none have apparently been issued since then.
“Race has steered our immigration policy going way back,” and a majority of the court is “just not ready to deal with that,” said Richard Boswell, a law professor at UC Hastings in San Francisco. “The way they see it, it’s a political issue that should be resolved at the ballot box.”
But these days, “especially in light of the Movement for Black Lives, the court must be sensitive to matters of racism,” said Marjorie Cohn, a law professor at Thomas Jefferson School of Law in San Diego and former president of the National Lawyers Guild.
The justices recently had a chance to confront issues of race and police conduct in numerous cases urging them to reconsider “qualified immunity.” That doctrine, from a 1982 ruling, protects police from suits over arrests or use of force even if they acted illegally, unless a past ruling had clearly shown that the conduct was illegal.
The court’s only minority justices, the liberal Sotomayor, who is Latina, and conservative Clarence Thomas, who is Black, have both criticized qualified immunity. But the court left the doctrine intact June 15 in oneline orders denying review of all the cases.
The denial “was surprising to me at a time when there’s so much attention on the problem of police abuse, especially with regard to people of color,” said Erwin Chemerinsky, the UC Berkeley Law School dean and the attorney in one of the cases appealed to the court.
Roberts’ history on racial issues is not encouraging to civil rights advocates. He wrote the 2013 ruling striking down a key enforcement provision of the Voting Rights Act that required states and counties with a history of discrimination to gain federal approval before changing their voting rules. He also wrote the lead opinion in a 2007 ruling barring school districts from acting voluntarily to prevent segregation by using racial criteria to assign students to schools.
He dissented from a 2015 ruling that allowed discrimination suits against housing policies that harm minorities, without requiring proof of intentional bias, and from a 2016 ruling that allowed the University of Texas to promote diversity on campus by considering race in admissions. Both were close cases that might have come out differently in the current court.
Notably, in the housing case, Roberts and other dissenters argued that discrimination suits required evidence of racial motivation — the type of motivation that the chief justice found irrelevant in the DACA and travel ban cases.
In race cases, “the court is not consistent and never has been,” said Joel Paul, a Hastings law professor.
He cited a ruling in 1989, long before Roberts’ tenure, that struck down a Richmond, Va., program setting aside 30% of city construction contracts for minorityowned businesses, which then held less than 1% of contracts in a city with a 50% Black population. In the majority opinion, Justice Sandra Day O’Connor noted that five of the nine City Council members were Black and said this raised a “concern that a political majority will more easily act to the disadvantage of a minority,” requiring close scrutiny of any council actions that harm whites.
Two years earlier, the court rejected a claim of racial discrimination in the death penalty in Georgia, despite a study that found killers of whites were 4.3 times as likely to be sentenced to death as killers of African Americans. The majority said such disparities were “an inevitable part of our criminal justice system” and there was no evidence of deliberate bias.
The court has ruled in only one racediscrimination case in its current term. The unanimous decision in March toughened the standard of proof for claims of racial bias in contracting, requiring plaintiffs to prove that race was the central reason for their rejection.
It might be difficult for the justices to sidestep racial issues in a set of higherprofile cases headed their way, said Boswell of UC Hastings. Hundreds of thousands of immigrants from El Salvador, Nicaragua, Honduras, Haiti, Sudan and Nepal are challenging Trump’s cancellation of their Temporary Protected Status, a program established by a 1990 federal law that allows undocumented migrants with no serious criminal records to live and work in the United States if a war or natural disaster in their homeland has made it unsafe to return.
While discussing the program at a White House meeting in January 2018, a week before starting the rollback, Trump asked why the United States was admitting so many people from “s— hole countries” such as Haiti and African nations. A federal judge in San Francisco cited Trump’s language as evidence of racial motivation in an October 2018 ruling blocking many of the deportations.
“The court at some point might have to find a way to address this,” Boswell said. “Or they might find some other procedural problem, just like under DACA.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicle.com Twitter: @BobEgelko