Wednesday, June 27, 2018

Williams v. Mississippi, the Travel Ban and Justice Kennedy's Legacy

Mark Graber

Williams v. Mississippi (1898) provides the better lens for understanding Trump v. Hawaii (2018) than Korematsu v. United States (1944).  Williams was the case in which the Supreme Court gave the green light to southern efforts to create a racial caste system.  Former slaveowners, Confederates and their supporters understood that frank and explicit racial discriminations ran the risk of being declared unconstitutional.  Mild subterfuge became the order of the day.  As John Knox informed the Alabama Constitutional Convention of 1904, their task was “within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”  Rather than declare that persons of color could not vote. Knox and his allies called for constitutional rules that gerrymandered “race-neutral” suffrage requirements to ensure that African-Americans and only African-Americans would be denied the ballot.  These measures included poll taxes, literacy tests and understanding tests, with grandfather clauses that provided that if a person or their ancestor voted before the day slavery was abolished in the state, they would be allowed to continue to exercise voting rights.  A unanimous Supreme Court in Williams sustained such measures.  Justice Joseph McKenna’s majority opinion declared, “the operation of the [Mississippi] Constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”  As Cunegonda sings in Candide, "if I'm not pure, at least my jewels are." 

The Republican Party, Trump administration and Roberts Court playbook relies on Williams, not Korematsu.  In Korematsu, the Roosevelt administration explicitly declared that they had reasons to discriminate against Japanese-Americans.  The issue was when admitted racial discrimination was constitutional.  In Williams, state lawyers smirked as they told the Supreme Court that state laws were designed to prevent the ignorant and criminals from voting, not persons of color.  Trump lawyers wore the same smirk on their faces when they told the Supreme Court that travel ban was aimed at terrorists, not Muslims, that there was no discrimination going on.  The issue was when the court should find racial discrimination Chief Justice John Roberts and company blandly agreed the purpose of a law was what the lawyer said the purpose was, not the lawmaker.  Just as McKenna insisted that the court should ignore speeches by Knox and others stating that the purpose of voting restrictions was to restore white supremacy, so the conservative majority on the Supreme Court insisted that good justices should ignore Trump’s tweets stating that he had ordered a Muslim ban.  If the politicians were not pure, at least their texts were.   

Roberts Court doctrine, if anything, is far friendlier to racial subterfuge than Fuller Court doctrine.  The Fuller Court in case after case simply declared that persons of color had not proved racial discrimination.  The Roberts Court adopts standards that make proving racial discrimination practically impossible.  Samuel Alito’s opinion in Abbott v. Perez (2018) insisted that because racism is so evil, courts must make every presumption that such luminaries as John Knox and his descendants have not engaged in racist actions, even when they tell us they are (or lower federal courts find clear evidence of discrimination).   White supremacists in the post-bellum South could only dream of such judicial solicitude

Korematsu and Williams frame Justice Anthony Kennedy’s legacy on the Supreme Court.  Kennedy loved liberty and, to a lesser extent, equality in the abstract, but not in their common manifestations.  He would strike down direct challenges to constitutional values, but throughout his tenure was uninterested in combatting efforts to circumvent the rights he celebrated in the abstract.  He might well have dissented in Korematsu, but would have happily joined the majority opinion in Williams.  He, like the Chief Justice, believe that “the best way to stop discriminating is to stop calling discrimination “discrimination.””

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