The Trump administration’s position in Trump v. Hawaii, the Muslim Ban case, is that “aliens outside the United States seeking a visa or initial admission have no constitutional rights at all regarding entry into the country.” Ponder that argument for a moment, as you also consider this picture of children, who were separated from their families and forced to live in a cage by the United States government.
CREDIT: U.S. Customs and Border Protection
The Trump litigation is, at its heart, a case about whether America’s borders are a civil rights-free zone. It is a case about whether the president of the United States can brag about his intention to violate the Constitution, brag about the specific pretext he will use to mask this violation in a thin veneer of legitimacy, and then get away with it because the president claims that he was acting in the interest of “national security.”
Should Trump ultimately prevail in this lawsuit — and the Court’s Republican majority appeared likely to hand him a victory at last April’s oral argument — Trump will almost certainly read the decision as a green light to commit greater atrocities against immigrants. Though there are legal distinctions between the Muslim Ban case and the arguments supporting the family separation policy Trump implemented earlier this year, the Court’s history is riddled with cases where the justices turned their back on a marginalized group — and authoritarian actors treated that decision as a license to go buck-wild.
Indeed, the Trump administration already plans to ask the courts for a broad license to detain immigrant children. On Wednesday, Trump handed down an executive order purporting that it is “the policy of this Administration to maintain family unity.”
Yet this same order also directs Attorney General Jefferson Beauregard Sessions III to ask a court to modify a settlement the government agreed to in 1997 — the “Flores agreement” — “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
The Trump administration’s goal, in other words, appears to be a world where parents and children are warehoused together in federal detention facilities until they are convicted of a crime or deported to their home country.
If the Supreme Court upholds the Muslim ban, many lower courts are likely to read that as a signal that the nation’s highest court no longer wants them to pay particular heed to the rights of immigrants. The Trump administration, meanwhile, is likely to feel emboldened to push harsher policies. And Trump’s supporters — well, if history is any guide, there is a danger they could also feel emboldened to take matters into their own hands.
“National unity is the basis of national security.”
Minersville School District v. Gobitis should have been an easy case.
Unlike many modern religious liberty cases, where religious conservatives demand the power to limit the rights of others, Gobitis involved two children who were expelled from a public school for refusing to say the Pledge of Allegiance. The two youths were Jehovah’s Witnesses, and they believed that “such a gesture of respect for the flag was forbidden by command of Scripture.”
As a matter of law, the Gobitis children should have prevailed. Generally, the First Amendment does not permit the government to force individuals to speak against their will. “If there is any fixed star in our constitutional constellation,” the Supreme Court later held in a similar case, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
And yet, Gobitis now stands as the paradigmatic example of how the Supreme Court can turn its back on a vulnerable group — and unleash the wolves of authoritarianism in the process.
A society committed to “ultimate values of civilization,” Justice Felix Frankfurter wrote, “may, in self-protection, utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.”
“National unity,” Frankfurter added, “is the basis of national security.”
The Gobitis decision was not a sweeping denial of the shared humanity of Jehovah’s Witnesses. It did not strip Witnesses of all their rights to seek protection from the law, or declare them to be enemies of American society. Yet it may as well have done so, because the public reaction to the decision was swift and harsh.
Gobitis came down in June of 1940. By the next September, according to the ACLU, more than a thousand Jehovah’s Witnesses were assaulted in 236 different incidents nationwide.
Solicitor General Francis Biddle warned that “self-constituted bands of mob patrioteers are roaming about the country, setting upon these people, beating them, driving them out of their homes.”
A lawyer who belonged to the faith lamented that hundreds of his fellow Witnesses were “beaten, kidnapped, tarred and feathered, throttled in castor oil, tied together an chased through the streets, castrated, maimed, hanged, shot, and otherwise consigned to mayhem.”
In one of these incidents, which is recounted in historian Shawn Francis Peters’ book Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution, Witnesses in a small Pennsylvania town were harassed, arrested on frivolous charges, set upon by mobs of fifty men or more, beaten, kicked, and dragged through the streets, then held and questioned by police for hours before they could seek medical treatment for their injuries.
In another incident, which took place just days after the Gobitis decision, vigilantes burned a Jehovah’s Witnesses’ place of worship in Maine, then rioted for days.
Three years after its original decision, the Supreme Court reversed course on forced flag salutes — though it did so over one of the saltiest dissenting opinions in the Court’s history, authored by Frankfurter. So Gobitis was a brief chapter in the Court’s history, but it was also a nasty one. And it was a warning about what can happen when the Court declares a persecuted group beyond the protection of the law.
“With all deliberate speed”
The Supreme Court did not learn the lesson of Gobitis.
Today, Brown v. Board of Education, with its declaration that racially “separate educational facilities are inherently unequal,” may be the most celebrated Supreme Court decision in the Court’s history. But there were two Brown decisions, and the second is often ignored by celebrants of the first decision.
Where the first Brown opinion declared an end to public school segregation, the second revealed that the Court had very little interest in enforcing its own desegregation order.
Brown II effectively delegated the task of implementing the first Brown opinion to federal trial judges in the South, many of whom were committed white supremacists selected by segregationist Southern senators. The Court, moreover, declared that integration must only move forward “with all deliberate speed.”
As Justice Thurgood Marshall, who litigated the Brown cases, later explained: “I’ve finally figured out what ‘all deliberate speed’ means. It means ‘slow.’”
Much of the white South reacted to Brown II with jubilation. One Louisiana lawmaker labeled the second Brown opinion “the mildest decree the Supreme Court possibly could have handed down.” A politician in Florida announced that the Court “realized it made a mistake in May and is getting out of it the best way it can.” Many Southern officials spoke of leaving schools segregated for another fifty or a hundred years.
Less than a year after Brown II, 19 Southern senators and several dozen members of the House released their own reaction to the Brown decisions. In a document widely known as the “Southern Manifesto,” the lawmakers accused the Court of substituting “naked power for established law” when it ordered schools desegregated, and it pledged to “use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”
Meanwhile, white supremacists throughout the South made a similar pledge — although they left out the word “lawful.”
Enraged by the first Brown decision, and emboldened by the second one, Southern whites launched a campaign of massive resistance to integration that effectively kept the region’s schools segregated for another decade. Some school districts even shut down their public school system altogether, replacing them with a school voucher system that allowed white people to redeem the vouchers at whites-only private schools.
And when quasi-legal tactics failed, white supremacists fell back on terrorism. Some districts devised “freedom of choice” plans, which assigned black students to segregated schools, but gave them a theoretical option to transfer to a white school. Black families that actually exercised this option, however, quickly received a visit from the Ku Klux Klan.
Similarly, federal district courts could only order a particular school district to be integrated if a black student or their family agreed to be the plaintiff in a federal lawsuit, but any African-American brazen enough to join such a lawsuit risked lynching. The first suit attempting to integrate a Mississippi grade school wasn’t filed until 1963 — nine years after the first Brown decision.
On the tenth anniversary of Brown I, just one in eighty-five Southern black students attended an integrated school.
Indeed, for at least its first decade, Brown made life for many African-Americans in the South much worse than it was before the decision. As the legal historian Michael Klarman wrote in From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, “Brown radicalized southern politics, as voters elected candidates who espoused extreme segregationist positions.”
The first Brown decision reminded Southern racists of the precariousness of white supremacy, while Brown II signaled to these same racists that they were free to reestablish their preferred racial order. The result was a violent backlash that endangered black lives, elevated staunch racists to elected office, and transformed relatively moderate politicians into fire-breathing segregationists.
Ultimately, according to Klarman, this violent response to the Brown opinions backfired on white supremacists — “it was the brutality of southern whites resisting desegregation that ultimately rallied national opinion behind the enforcement of Brown and the enactment of civil rights legislation.”
But the world that immediately succeeded Brown II was, for many African-Americans, Hell on Earth.
“The integrity and reliability of the electoral process”
At least before Trump’s presidential campaign, modern day racial conservatives relied far less on violent rhetoric, open defiance of the law, and terrorism than the angry mobs that followed Gobitis or the massive resisters of the post-Brown era. Even after Trump, the president faced significant backlash when he treated white supremacist vigilantes with kid gloves.
Yet, while the racism of 2018 is often more subtle and less overtly violent than the racism of 1956, this racism is still very much alive. And it thrives in many of our nation’s state legislatures.
Consider the Supreme Court’s decision in Crawford v. Marion County Election Board. Crawford was a challenge to Indiana’s voter ID law, a common method of voter suppression favored by Republicans — in large part because such laws tend to disenfranchise voters of color who are likely to vote for Democrats.
On its face, Crawford was a narrow decision. For one thing, there was no majority opinion in Crawford — though six justices voted to reject this challenge to the Indiana law, they split down the middle regarding why the Court should do so.
The narrower of these two opinions, moreover, rested much of its analysis on the lack of an adequate record in this one particular case. “on the basis of the record that has been made in this litigation,” Justice John Paul Stevens wrote for himself and two of his colleagues, “we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.”
Crawford, moreover, merely rejected a constitutional challenge to voter ID laws. It left the door open to lawsuits challenging such laws under the Voting Rights Act — an argument that at least some courts have found convincing.
As a legal matter, in other words, Crawford was an incremental move against voting rights. It was no more a sweeping attack on the right to vote than Gobitis was an order to harass Jehovah’s Witnesses. As a practical matter, however, state lawmakers read the decision as an announcement that the sheriff just left town for good.
A wave of states enacted strict voter ID laws, and some of them were quite open about why they did so. Pennsylvania Republican House Leader Mike Turzai (R-PA) even bragged in 2012 that voter ID “is gonna allow Governor Romney to win the state of Pennsylvania.”
Other states, meanwhile, found other ways to make it harder to vote. According to the Brennan Center for Justice, since the 2010 election, “13 states have more restrictive voter ID laws in place (and six states have strict photo ID requirements), 11 have laws making it harder for citizens to register, six cut back on early voting days and hours, and three made it harder to restore voting rights for people with past criminal convictions.”
The worst of these laws was North Carolina’s omnibus voter suppression law, which combined many of these state-level efforts to restrict voting into one grand attack on the franchise. As a federal appeals court determined when it struck much of the law down, various provisions were designed specifically to reduce African-American turnout at the polls.
One again, in other words, a Supreme Court decision making a relatively narrow incursion on minority rights fostered a much larger attack on those rights. State lawmakers’ reaction to Crawford was neither as violent as the aftermath of Gobitis and Brown II nor as transparently lawless. But Crawford may provide the biggest warning of all about what could happen in the immediate aftermath of the Muslim Ban decision.
The story of Gobitis was a story of authoritarian elements within the general populace viewing a Supreme Court decision as a license to lash out at a disfavored minority group. The story of Crawford, by contrast, is the story of anti-democratic elements who wield the official power of the government deciding to push the envelope after the Supreme Court signaled that they were likely to get away with it.
Trump v. Hawaii is a case about an authoritarian, anti-democratic president. And it is a case about a racist, who does not feel bound by the Constitution, and who likes to lash out at vulnerable immigrants.
There’s no telling what he may do if the Supreme Court emboldens him further.