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.””