'Overtly racial'? Supreme Court justices clash over race in latest rulings

WASHINGTON − Supreme Court Justice Samuel Alito, who earlier this year authored a controversial opinion gutting a key provision of a landmark civil rights act, had more disputes with his liberal colleagues on race-related issues in the latest batch of decisions.

In one ruling issued June 25, Alito – one of the court's most conservative justices – rejected the claim that President Donald Trump’s comments about Haitians were overtly racial.

But Justice Elena Kagan said Trump’s statements were “so repellent and racially inflected” that Alito declined to include them in the decision he wrote allowing the administration to remove deportation protections from Haitians.

In a decision about gun regulations, Alito and Justice Ketanji Brown Jackson traded barbs about whether historical gun laws that discriminated against Black people were relevant to the case.

Alito called such laws “tainted artifacts” that should not be considered when deciding whether there’s a historical tradition for a modern gun rule.

Jackson said that if the court is going to rely on history to evaluate today’s laws, “it deepens race-based wounds, by classifying the experiences of those who have been historically excluded as categorically irrelevant.”  

Race is an ideological fault line

Both of the recent decisions, as well as the April ruling on the Voting Rights Act, split the 6-3 conservative court along ideological lines.

How to consider race has been a major fault line on the court in recent years.

The court’s conservatives have advanced a “colorblind” approach to the Constitution that often views consideration of race as discriminatory.

The liberal justices have stressed that, as Jackson put it, “Black Americans are still saddled with the ramifications of centuries of legally authorized exclusion.”

`Black code' laws

In the case about Hawaii’s law requiring gun owners to get permission before bringing a firearm into a store or other private property that’s open to the public, the two sides disagreed over whether it met the historical test the court set in 2022 for evaluating gun regulations.

One of the historical laws Hawaii pointed to was an 1865 Louisiana statute, adopted after the Civil War, to prevent anyone from carrying a gun onto a plantation without the landowner’s permission. Part of Louisiana’s “black code” laws, the restriction was intended to disarm Black people.

“Unless we put history entirely out of our minds,” Alito wrote in the majority’s decision striking down Hawaii’s law, “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.”

In her dissent, Jackson wrote that because gun rules now rise and fall on historical analogues as dictated by the 2022 landmark ruling New York State Rifle & Pistol Association v. Bruen, the justices “must contend with our Nation’s entire history, warts and all.”

“This type of nuanced analysis is important, for it values the historical experiences of Black people as targets of invidious race discrimination and ensures that they are not (here again) excluded from the constitutional baseline that Bruen purports to draw,” she said.

Not `overtly racial'

In the June 25 case about deportation protections for Haitians, one of the issues was whether Trump’s cancellation of the humanitarian program had racial motivations.

Trump has repeatedly maligned Haitian immigrants, including falsely accusing Haitians living in Ohio of eating people’s pets.

“In Springfield, they’re eating the dogs," Trump said during a 2024 presidential debate. "The people that came in, they’re eating the cats. They’re eating the pets of the people that live there."

In a speech in December in Pennsylvania, Trump referred to Haiti as a “hellhole.”

“Why can't we have some people from Norway, Sweden, just a few? Let's have a few from Denmark,” Trump said, recounting how in 2018 he had complained about immigrants coming from “s---hole” countries. “Send us some nice people.”

Alito said Trump’s comments were not “overtly racial, and in substance all expressed policy view that could rest on race-neutral justifications.”

The language Trump used may be heated, he wrote, but “political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago.”

In her dissent, Kagan said it was hard to understand what Alito meant by not “overtly racial.”

“Haitians are Black. (Norwegians and Swedes not so much.),” she wrote. “The references – of filth, disease and primitiveness – are shot through with racial stereotypes and tropes.”

“It is hard to imagine,” Kagan said, “the statements being made today of any White community.”