In a brief defending its ban on citizens from six Muslim-majority countries, President Donald Trump’s Justice Department approvingly cited a segregation-era Supreme Court decision that allowed Jackson, Mississippi, to close public pools rather than integrate them.
In the early 1960s, courts ordered Jackson to desegregate its public parks, which included five swimming pools. Instead, the city decided to close the pools. Black residents of Jackson sued. But in 1971, the Supreme Court, in a 5-4 decision, decided that closing the pools rather than integrating them was just fine.
The dissents, even at the time, were furious. “May a State in order to avoid integration of the races abolish all of its public schools?” Justice William O. Douglas asked in his dissent.
“I had thought official policies forbidding or discouraging joint use of public facilities by Negroes and whites were at war with the Equal Protection Clause” of the Fourteenth Amendment, Justice Byron White wrote in another dissent. “Our cases make it unquestionably clear, as all of us agree, that a city or State may not enforce such a policy by maintaining officially separate facilities for the two races. It is also my view, but apparently not that of the majority, that a State may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order.”
The Trump administration emphasizes this in its citation of the case, arguing that looking into “governmental purpose outside the operative terms of governmental action and official pronouncements” is “fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’”
But in some cases, such as the closure of the Jackson pools, officials’ motivations are clear, said Paul Brest, the director of Stanford University’s Law and Policy Lab.
“When it is absolutely clear that an official acted for unconstitutional purposes … [the courts] should be willing to strike down that decision because, even though the decision might have been reached legitimately, a public official violates the constitution when he or she acts for unconstitutional reasons,” Brest said. “It’s as simple as that. … Race discrimination is the best example of where courts are quite willing to take people’s motivations into account — or religious discrimination.”
Palmer is one of the worst Supreme Court decisions ever handed down in regards to race, said Michele Goodwin, the chancellor’s professor of law at the University of California, Irvine.
“Citing Palmer is like citing Buck v. Bell for a premise of equal protection,” Goodwin says. (Buck v. Bell legalized eugenics.) She added that a case like Palmer also doesn’t hold up over time.
Oh, like Buck v. Bell isn’t going to be cited approvingly in the next 4 years.