On Thursday, the Supreme Court dealt a major blow to the Trump administration’s immigration agenda. Chief Justice John Roberts, writing the majority opinion, found that the government improperly terminated the Deferred Action for Childhood Arrivals program (DACA). The unexpected decision means that, for now, nearly 700,000 young immigrants can live and work in the U.S. without fear of deportation.
While immigrant advocates have rightly celebrated the outcome of DHS v. Regents of the University of California, the ruling is still problematic. Roberts brushed aside the possibility that the decision to end DACA was motivated by discriminatory intent, a view that seems to ignore both the law and reality. Not only did the Chief Justice too readily dismiss an equal protection claim, his opinion makes it harder for future plaintiffs to challenge racist policies before the high court.
In the DACA case, the plaintiffs asserted that the decision to end the popular program was potentially motivated by discriminatory intent, thus violating the equal protection guarantee of the Fifth Amendment. The controlling precedent here is Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) which provides a test for determining whether such an intent was present. The factors to consider include whether an action has a disproportionate impact on a particular group, whether it results from an unusual procedural process, and contemporaneous remarks by decision-makers.
Under this test, the termination of DACA likely supported an equal protection claim. Over 90 percent of DACA grantees are Latino, which satisfies the requirement for “disproportionate impact on a particular group.” The administration has offered shifting rationales for ending DACA, as well as inconsistent support for the program, which can be taken as evidence of “an unusual procedural process.” Trump has made numerous, public comments denigrating Mexicans and immigrants, amounting to “contemporaneous remarks” by a decision-maker.
But Roberts dismissed this claim as insufficient, bending the Arlington test to align with his own views. Because Latinos make up a large share of the undocumented population, he reasoned, it is to be expected that they would disproportionately benefit from any immigration program. He saw “nothing irregular” in the history leading up to DACA’s termination. President Trump’s critical statements about Latinos were, to Roberts, “unilluminating” and “remote in time and made in unrelated contexts.”
Ironically, “unilluminating” and “remote in time and made in unrelated contexts” are apt descriptions of Roberts’ own view here. His position is troubling because, in the DACA case, he did not have to rule on the equal protection claim. He could have sent it back to the lower courts to decide. Instead he gave the Trump administration an undeserved presumption of good faith. Then again, Roberts’ opinion is in line with his history of rolling back measures aimed at combatting racial inequality. In 2013, he allowed the Court to gut the Voting Rights Act, which has made it harder for people of color to vote. In a 2007 school desegregation case, he wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” — as though racial discrimination could be ignored or wished away. His broad view that the Court must be color-blind and that race has no place in constitutional discourse, basically shuts out the real-life experiences of millions of people of color.
In her concurrence in the DACA case, only Justice Sonia Sotomayor recognized that it was premature for the Court to dispose of the equal protection claim. She noted that the president had called Mexican immigrants “people that have lots of problems,” “the bad ones,” and “animals.” She linked these remarks to the decision to terminate DACA, correctly suggesting that “something other than questions about the legality of DACA motivated the rescission decision.”
While it is disappointing that the other liberal justices did not join Sotomayor in her opinion, her position is hardly extreme. Opposition to immigration has been a hallmark of the Trump administration, and the president is known for his racially charged remarks. It defies logic to see no correlation between Trump’s history of anti-Latino bigotry and the move to end DACA. Consider that a Quinnipiac poll last year showed that a majority of American voters believes that the president is a racist.
The DACA decision was a welcome victory for beneficiaries of the program. Yet Roberts’s opinion is nonetheless unsettling for a country grappling with racial tensions. If the Chief Justice is unwilling to see any possibility of discriminatory intent coming from an administration that has hired Steve Bannon and Stephen Miller, when will he ever acknowledge it? Roberts is choosing to be blind to reality — and inadvertently underscoring the need more for a more diverse judiciary.
The Supreme Court should not have discounted the evidence of discriminatory intent underlying the decision to end DACA. Roberts’ refusal to allow further exploration of this claim is a setback in the fight for equal protection under the law.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.