Mullin v. Doe

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• 0:00Speaker 00

  We will hear argument first this morning in case 25 1083 Mullin versus Doe and the consolidated case.

• 0:10Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Mullin v. Doe, a case about the Trump administration's efforts to expel immigrants from the United States, including people who are here legally. At issue in this case is a humanitarian program that grants temporary protected status, or TPS, to people who have come to the U.S. from countries undergoing severe conflict or environmental disaster. When Trump took office for a second term, the U.S. was home to about 1.3 million TPS holders, people hailing from a list of countries like Somalia, South Sudan, Syria, and Haiti.

• 0:51Speaker 01

  Last June, then Homeland Secretary Kristi Noem attempted to revoke TPS for Haitian nationals, a move that was challenged in court on the basis that it was motivated by racial animus and therefore violating the equal protection clause. Earlier this summer, Supreme Court ruled 6 to 3 in favor of the government. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:19Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have embarrassed our nation, like the World Cup final halftime show. I'm Peter. I'm here with Michael.

• 1:28Michael Liroff?

  Hi, everybody.

• 1:29Peter Shamshiri?

  And Rhiannon.

• 1:30Speaker 04

  Hey, everybody. Why was Justin Bieber doing MTV Unplugged? Why was there a peace and love sort of aesthetic rainbow that's from the 90s? Why were the Muppets playing Seven Nation Army?

• 1:43Peter Shamshiri?

  When I saw the Muppets, I was like, oh, this is looking up, actually.

• 1:47Speaker 04

  From the intro?

• 1:48Peter Shamshiri?

  Right.

• 1:49Speaker 04

  The Muppets took over after Madonna was fake driven in by Ronaldinho and Ronaldo.

• 1:54Peter Shamshiri?

  That was confusing because for a few seconds, you're like, is this live? Is Madonna doing this live?

• 1:59Speaker 04

  In the bowels of the stadium.

• 2:01Peter Shamshiri?

  That doesn't seem realistic. And then, like, there were a few cuts where you're like, oh, it's not live. And then, yeah, it was just sort of a parade of what felt like cameos. You know what it reminded me of? Super Bowl commercials these days.

• 2:12Michael Liroff?

  Hmm.

• 2:13Speaker 04

  Yeah, of course.

• 2:14Peter Shamshiri?

  Right? There's no, like, creativity.

• 2:16Michael Liroff?

  It's just like, you know this guy.

• 2:17Peter Shamshiri?

  And here's another cameo. Yeah, look at this fucking guy. You know the Muppets. You know the Muppets, you fucking idiot. Here's Justin Bieber singing, like, "Hallelujah, we're at the World Cup." What are you fucking talking about, dude?

• 2:29Speaker 04

  Silent stadium.

• 2:30Michael Liroff?

  I'll admit, I didn't see the halftime show. I watched all the World Cup, but I didn't see the halftime show. But I did see also that Tom Cruise gave a pregame inspirational speech to the crowd.

• 2:40Speaker 04

  That's right.

• 2:41Michael Liroff?

  That feels like there's something surreal about just that sentence. Tom Cruise gave an inspirational speech before the World Cup final. Like, what are we talking about?

• 2:49Peter Shamshiri?

  To the crowd, yeah.

• 2:50Michael Liroff?

  Yeah, to the crowd.

• 2:51Speaker 04

  Yeah.

• 2:52Michael Liroff?

  Bizarre.

• 2:53Speaker 05

  Football is a language spoken without words.

• 2:57Peter Shamshiri?

  The idea that it's that you need to work Tom Cruise in, in some way, you know what I mean? This week's case, Mullin v. Doe, this is a case from the end of this past term about temporary protected status for Haitian immigrants in particular. Temporary protected status is a legal designation that grants temporary protection from deportation and temporary work authorization to people from countries that are experiencing armed conflict or natural disasters, or any other type of situation that would make it dangerous for them to remain in their country, sort of like a temporary asylum, right? Haitians had been granted temporary protected status starting in 2010, following the devastating earthquakes in that country.

• 3:41Peter Shamshiri?

  And last year, Donald Trump announced that he would terminate that temporary status, meaning that over 300,000 Haitians in this country would no longer be protected from deportation.

• 3:52Speaker 04

  Yes.

• 3:53Peter Shamshiri?

  That decision was challenged primarily on the basis that Donald Trump's decision had racist motivations, believe it or not, which in a sensible and just world would violate equal protection, right? But the Supreme Court, in a 6 to 3 decision, said, what's racism really?

• 4:12Speaker 04

  So let's just jump in and talk about TPS, temporary protected status, what it means when you have TPS. Congress created TPS in the Immigration Act of 1990 so that nationals of certain countries that are experiencing, like, ongoing armed conflict, or an environmental disaster, or just extraordinary but also temporary conditions can receive TPS. TPS status, temporary protected status, as an immigrant in the United States, is not automatic. This is something that you apply for. It's something that you, as an individual, you're already in the United States. But the theory is that something has happened in your country, in your home country, that is dangerous.

• 4:57Speaker 04

  And that means that even if you didn't have an immigration status, even if you weren't documented in the United States, if you receive TPS, you are temporarily protected from deportation from the United States.

• 5:11Michael Liroff?

  Yeah, right. Like, you're a Haitian, you're here, you don't have any documentation, you're eligible to be deported, and then there's a devastating earthquake in Haiti, and it is, at least for some time, dangerous to return to. We're not going to deport you there.

• 5:26Speaker 04

  But it's not automatic. You have to apply to get TPS status. And it's also not automatic in terms of just because something bad happens in a country, TPS is now applies to that country. The government, in fact, specifically the Secretary of Homeland Security, has discretion to decide when a country, and therefore nationals from that country, get TPS. The Secretary of Homeland Security designates a country as receiving this TPS status for nationals from that country in the U.S.

• 6:03Peter Shamshiri?

  And the secretary can undesignate, right? They can terminate that designation, which is what is happening here.

• 6:08Speaker 04

  Exactly.

• 6:09Peter Shamshiri?

  The whole question is, what if the reason that you're terminating it is racism, right? What if you're doing it for racist reasons? That would presumably violate the equal protection clause, right?

• 6:21Speaker 04

  Hmm.

• 6:22Peter Shamshiri?

  Or...

• 6:23Michael Liroff?

  So you say.

• 6:24Speaker 04

  Pero, what if it is?

• 6:27Peter Shamshiri?

  Perhaps it is.

• 6:29Speaker 04

  So this TPS program affects a huge number of people. As of March 2025, there were about 1.3 million people with TPS living in the United States. Haiti was one of these designated countries. You mentioned this, Peter, up top. In 2010, that designation came down after earthquakes there. Syria, which is relevant in this case as well, in that country because of the civil war, Syria was given TPS designation in 2012. But starting early in 2025, early in the second Trump administration, the Trump administration through DHS starts to terminate those TPS designations for certain countries.

• 7:09Michael Liroff?

  And Haitians and Syrians aren't the first to lose TPS status and probably won't be the last. Trump has been doing this for Hondurans, for Venezuelans. I think in 2025, 700,000 people lost TPS.

• 7:25Speaker 04

  Yeah, and so, like, what does that look like when you lose TPS? You return to the immigration status that you would have had in the United States before you were granted TPS. So, for example, for many of these people, they entered the United States without inspection, meaning they weren't interviewed by, like, an immigration official. They didn't apply for, you know, another kind of immigration status when they entered the United States. And so, they were living undocumented in the U.S. When the TPS designation for your country, that temporary protection from deportation, when that's terminated, you go back to being undocumented in the United States, and therefore you are subject to removal. You are subject to deportation.

• 8:08Peter Shamshiri?

  You're exposed to Donald Trump's immigration apparatus.

• 8:14Speaker 04

  Yeah, the Trump immigration apparatus that has been announced loudly, proudly, and racistly since Trump was campaigning for office. In 2024, when he was running, you know, the racist rhetoric about people from these countries that they later removed TPS designation for was, it was like an inundation.

• 8:32Speaker 05

  I've also announced a permanent pause on third world migration, including from hellholes like Afghanistan, Haiti, Somalia, and many other countries. In Springfield, Ohio, 20,000 illegal Haitian migrants have descended upon a town of...

• 8:50Speaker 05

  58,000 people destroying their way of life. They're coming from 181 countries as of yesterday. Right? And we're a dumping ground. We're like a, we're like a garbage can for the world.

• 9:03Speaker 04

  It was on its face horrible and disgusting. And if you're thinking about the effect on these hundreds of thousands, over 1 million people who have TPS, this is devastating. This has a massive effect, not just on Haitians, not just on TPS grantees, but our society, all immigrants, in fact, the United States as a whole.

• 9:25Peter Shamshiri?

  There are actually two legal issues. The first is about the statute. The statute outlines the process that the Homeland Security Secretary has to adhere to in making TPS determinations, part of which is a consultation with the State Department. It is a pretty plain fact that this did not occur. It was reported by the New York Times that Noem made the decision without doing this.

• 9:47Speaker 04

  Yeah.

• 9:48Peter Shamshiri?

  But what the Supreme Court says is that doesn't matter because none of this is reviewable by courts. The law says that the Secretary's determinations are not subject to judicial review. They can't be reviewed. So the plaintiff said, okay, her determination isn't reviewable, but she violated the process leading up to the determination.

• 10:09Speaker 04

  Yeah.

• 10:09Peter Shamshiri?

  So that should be reviewable. But Alito, who writes the opinion, says, no, that's all part of the determination. Right? The process and the determination, that is one thing, which doesn't make sense as like a matter of how I use words.

• 10:25Michael Liroff?

  No.

• 10:25Peter Shamshiri?

  Generally. But also, it's not really practical. I mean, so texturally hitting up Merriam and Webster, you know, the determination is the determination.

• 10:34Michael Liroff?

  Right.

• 10:35Peter Shamshiri?

  The process beforehand is a separate thing.

• 10:37Michael Liroff?

  Right.

• 10:37Peter Shamshiri?

  But also, one argument that was made to try to appeal to the conservatives was like, look, if you say this is unreviewable entirely, a future administration might decide that temporary protected status can't just be handed out to whatever country they feel. No standards, nothing, and they can just hand it out on a whim and there's no legal challenge. Like, is that a future you want to live in, Sam Alito, where President AOC is giving TPS to all the minorities of the world, Sam?

• 11:04Speaker 04

  Yeah.

• 11:05Peter Shamshiri?

  You know, the court doesn't address that argument specifically. I imagine that what Sam Alito is doing is just saying like, if they try to, if they try to pull that, we'll, we'll think of something.

• 11:15Michael Liroff?

  That sounds like a major question to me.

• 11:18Speaker 04

  Yeah. Yeah, exactly. And just back on like the definition of the term determination, we know the determination is not justiciable. It doesn't get judicial review. That's fine. It says it in the law. Why would the law then require other rules in the process?

• 11:35Michael Liroff?

  Right.

• 11:35Speaker 04

  Such as that the DHS Secretary has to consult with other government agencies in making the determination?

• 11:42Michael Liroff?

  Right.

• 11:42Speaker 04

  If that was also the determination? It doesn't make sense.

• 11:45Peter Shamshiri?

  No.

• 11:46Michael Liroff?

  I mean, you can't even talk about this in a way that's sensible. Like you say, the process leading up to the determination is part of the determination. This, the phrase itself, the process leading up to the determination.

• 11:56Peter Shamshiri?

  Right.

• 11:57Michael Liroff?

  Clearly delineates them as two separate things. The process itself and the determination that follows the process.

• 12:04Peter Shamshiri?

  The decision is not reviewable, but like there are required steps along the way.

• 12:09Michael Liroff?

  Yeah.

• 12:10Peter Shamshiri?

  Whatever.

• 12:11Michael Liroff?

  Yeah.

• 12:11Peter Shamshiri?

  It's, yeah. Somehow the less offensive part of this decision.

• 12:14Michael Liroff?

  Yes, yes. I did want to say, I think like, there's this idea in legal academia, they talk about what they call like phantom constitutional norms, which are certain values that like will shine through even when they're not like explicated, right? Like a classic one that up until recently, I think was pretty common was that courts disfavor indefinite detention. And so that'll come through even in statutory interpretation cases and things like that. And I think what we're seeing here a bit is that in this court, the unitary executive theory has become sort of a phantom norm where even in a statutory interpretation case like this, it's like, well, no, of course the determination isn't reviewable either because this is, Congress doesn't get to tell the executive what to do.

• 12:58Peter Shamshiri?

  Right.

• 12:59Speaker 04

  Yeah.

• 12:59Michael Liroff?

  This is the executive branch and our god emperor, this syphilitic, spray tanned freak gets to say and do whatever he wants. And what he decides to do with the executive branch, that's final. Right? And so if, if Congress says it's not reviewable, then it's not reviewable and that's that. But how he gets there is up to him.

• 13:17Speaker 04

  That's a good point, Michael. And it's also like an example of how prioritizing or, or pushing forward this unitary executive theory is sort of contra-legal interpretation in general. I mean, the law, as it's interpreted, is often broken down into procedural rules and substantive rules.

• 13:36Michael Liroff?

  Right.

• 13:37Speaker 04

  Here, it's so clear that like, there's a rule about the substantive decision. The making of the determination, Congress says, is not reviewable by, by courts. However, there are procedural rules here. They're distinct in the statute as it's written. Courts take up these questions differently and different interpretation applies based on whether something is a procedural rule or a substantive rule. And it's collapsed. These categories are collapsed in on one another because, you know, a theory like the unitary executive theory just kind of takes over.

• 14:10Peter Shamshiri?

  So the big issue here, though, is equal protection.

• 14:13Speaker 04

  Yeah.

• 14:13Peter Shamshiri?

  Plaintiff argue that the administration violated the equal protection clause here because their reasoning for ending TPS for Haitians was motivated by racism.

• 14:23Michael Liroff?

  Ooh, that's a big accusation to make without anything to back it up.

• 14:28Peter Shamshiri?

  How did they come to such an audacious conclusion? While Donald Trump, if you recall, has said that-

• 14:35Speaker 05

  In Springfield, they're eating the dogs, the people that came in. They're eating the cats. They're eating, they're eating the pets.

• 14:44Peter Shamshiri?

  He said that they are-

• 14:45Speaker 05

  Poisoning the blood of our country. That's what they've done.

• 14:48Peter Shamshiri?

  And then when people called him out on the blood poisoning language, he doubled down at another rally.

• 14:53Speaker 05

  Destroying the blood of our country. That's what they're doing. They're destroying our country. They don't like it when I said that. And I never read Mein Kampf. They said, oh, Hitler said that in a much different way.

• 15:10Speaker 04

  In a much different way? Like, he wrote it? Whereas me, Trump, I'm saying it all up.

• 15:15Peter Shamshiri?

  In a much different way is, is so fucking good.

• 15:17Speaker 04

  It's so funny also to just deny reading it. Like, how do you, you can't prove the negative?

• 15:22Peter Shamshiri?

  Never read it, but I do know that it, when he was saying it.

• 15:26Speaker 04

  It was different from me saying it.

• 15:28Michael Liroff?

  Yeah.

• 15:29Peter Shamshiri?

  It was different, folks.

• 15:32Peter Shamshiri?

  By the way, I'm going to read a quote, "All great cultures of the past perished only because the originally creative race died out from blood poisoning." That is by, am I pronouncing this correctly? Adolf Hitler. But I guess he said race. Hitler said race out loud, right? He said race expressly. Trump, of course, did not.

• 15:58Speaker 04

  Yeah. Therefore, race neutral.

• 16:00Peter Shamshiri?

  Very sneaky move by Donald Trump. That way you don't know.

• 16:04Speaker 04

  Yeah.

• 16:07Peter Shamshiri?

  He described Haitians in Ohio as illegal, despite the fact that they are documented under TPS.

• 16:14Speaker 04

  Yes.

• 16:15Peter Shamshiri?

  He asked why we take immigrants from countries like Haiti and Somalia and not Norway and Sweden. Sam Alito says, and I quote, "None of the cited statements by either the president or the secretary was overtly racial. And in substance, all expressed policy views that could rest on race neutral justifications."

• 16:36Speaker 04

  Yeah. Sure.

• 16:38Peter Shamshiri?

  So Sam, I would love for you to explain what the race neutral policy view being expressed by saying that Haitians are poisoning the blood of our nation actually is, right? What's the race neutral poisoning the blood policy? Sam Alito says that these comments are not overtly racial, which is just an insane thing to say. But yeah, I guess what he means is that none of them use the literal word race, right? Or like, say, black?

• 17:05Speaker 04

  It must be. Like, that's the only, yeah.

• 17:07Peter Shamshiri?

  Now, you might wonder how Alito addresses these exact quotes. Like, how does he argue that Haitians poisoning the blood of our nation doesn't have a racial connotation? And the answer is that he does not. He actually does not include Trump's statements in the opinion itself. Instead, he describes like categories of statements by Trump and Kristi Noem. He's like, there are four categories of statements. There are statements that object to immigration generally, statements opposing TPS, statements denigrating the countries that TPS applies to, and statements, quote, "malining Haitians who have come to the United States."

• 17:45Speaker 04

  Uh huh.

• 17:46Peter Shamshiri?

  Like, those are the categories.

• 17:48Michael Liroff?

  That last one, that last one.

• 17:51Peter Shamshiri?

  Yeah, zone in.

• 17:52Speaker 04

  Let's lock in here, Sam.

• 17:55Peter Shamshiri?

  He basically says like, making comments about poverty in Haiti is insensitive, but it's not inherently racist. But he just sort of like, elides the worst statements, right? He like, literally never mentions the poisoning the blood thing, which like, I do feel like you kind of need to explain why that's not racist, right?

• 18:13Speaker 04

  And it doesn't quite fit in any of those four categories.

• 18:16Peter Shamshiri?

  I mean, I guess it's maligning, I guess it's maligning Haitians in a racist way, I would say. Once you start talking about blood, I feel like you're into what I would describe as overtly racial territory. I also think it can be a violation of equal protection if it's implicitly racial. If the implication is, you know, as strong as it is here, shall we say? Like, if someone's like, I like people from Norway and Sweden, but not people from Haiti. Now, I guess you could argue that that's not expressly racial, right? But, but like, let's, let's not make buffoons of ourselves.

• 18:52Speaker 04

  One brain cell, one brain cell is all it takes.

• 18:55Peter Shamshiri?

  Yeah. By the way, Alito says, "There's no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country's ills." And it's like, okay, that's a nice thought, I guess, but like, that is what Trump did, and then he canceled TPS for them, and now the case is in front of you, and you're saying that's okay, so.

• 19:16Michael Liroff?

  So, what do we, yeah, hmm.

• 19:20Peter Shamshiri?

  This is like, what conservatism is nowadays. It's like, this type of conservatism, where it's like, you say, "It's bad to be racist," and then you just do racism, like the most obvious racism possible. Alito goes on, he says, "Look, there is a race-neutral justification for the Trump administration's actions. The administration has terminated the temporary protected status of every country that has come up for renewal." So, Alito says, "Look, the motivation isn't racist, they just oppose TPS generally." But as Kagan points out in her dissent, "That's not how the legal analysis works. The fact that you can identify some theoretical coherent, non-racist justification doesn't make it

• 20:04Peter Shamshiri?

  legal. If racial animus is a motivating factor in the decision at all, that is supposed to violate the Constitution, that is supposed to violate the equal protection clause, Arlington Heights standard, by the way, if you're a little legal nerd." But Alito basically ignores that, in the same way that he ignores what Trump said, he sort of ignores the proper legal analysis, and he's just like, "Look, there's a race-neutral justification here." It's like, "Yeah, I guess so. Like, you can, you can say, 'I've thought of a reasoning for them that might not be racist.'" It's like, great, but he also said racist things, and then did this thing. "I'm now going to read some quotes to y'all." These quotes are from Students for Fair Admissions v. Harvard.

• 20:43Speaker 04

  I was thinking about affirmative action, yes.

• 20:47Peter Shamshiri?

  Where the court said that affirmative action is, of course, too racist. Affirmative action violates the equal protection clause, right? This is John Roberts in that case. Quote, "Eliminating racial discrimination means eliminating all of it. And the equal protection clause, we have accordingly held, applies without regard to any differences of race, of color, or of nationality. It is universal in its application."

• 21:12Speaker 04

  Okay, yeah, yeah. Salute up.

• 21:15Peter Shamshiri?

  Salute the flag. Bald eagle, crying. Oh my god. Beautiful stuff, Mr. Roberts, sir. He says, "At the heart of the Constitution's guarantee of equal protection lies the simple command that the government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class." When it comes to striking down affirmative action, John Roberts feels like he's rewriting the Declaration of Independence. He's like, he's writing with one hand, you know what I mean? But when Trump is like, "Haitians, disgusting, poisoning our blood, eating pets, and by the way, they can't come here anymore, and they all have to leave," Roberts is like, "Hmm. Now, this is confusing. What is this? Is this racism that I'm seeing?"

• 22:00Peter Shamshiri?

  Here's some more John Roberts. "By accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, respondents' programs tolerate the very thing that Grutter, another case, foreswore: stereotyping."

• 22:15Michael Liroff?

  Oh, we hate stereotyping.

• 22:18Peter Shamshiri?

  It's illegal. I mean, there's, there's no way around it. When the government stereotypes, that is illegal. And then there's one other bit I want to touch on from that case. There was an argument, it was made in the dissent, it was made by others, that schools could, for example, contemplate race kind of indirectly, if someone, for example, wrote about their experience with race in an admissions essay, right? That could be factored in to the benefit of a student, right? So, a lot of people are sort of talking about this as a potential sort of end run around affirmative action bans, as like, someone writes poignantly

• 22:58Peter Shamshiri?

  about their experience as a, as a black kid, or whatever it might be, then schools can consider that, right? But the court said, "No. Universities may not simply establish through application, essays, or other means, the regime we hold unlawful today."

• 23:15Speaker 04

  Oh.

• 23:16Peter Shamshiri?

  What cannot be done directly, cannot be done indirectly. So, you can't just come up with an excuse.

• 23:22Speaker 04

  You can't just come up with something that looks race-neutral.

• 23:25Michael Liroff?

  Yeah.

• 23:26Peter Shamshiri?

  Yeah, you can't, you can't just come up with some fake race-neutral justification. How dare you? We would never. So, in affirmative action, in that context, the presence of race as a factor in admissions makes the whole framework illegal, right? But here, the presence of a single non-racial factor makes the whole thing legal. It purifies the soul of the whole operation, right? The fact that there might be a race-neutral element floating around amidst all the racism.

• 24:01Speaker 04

  That Alito makes up.

• 24:02Peter Shamshiri?

  Yeah, that simply has a purifying effect. It's a, it's a healing potion for the whole operation. To talk about another context, you have something like voting, right? In the voting discrimination context, we've seen repeatedly that state legislatures will pass laws that look like there's really almost no other explanation other than racism, right? But the Supreme Court said, "No. It is not discriminatory unless there is evidence of overt racial animus in the passage of the law." And yet, here they have evidence of overt racial animus, and they just ignore it. You cannot win. You cannot win with these

• 24:47Peter Shamshiri?

  disgusting, filthy freaks.

• 24:50Michael Liroff?

  You can't win with them because they are white supremacists, right? They're segregationists, they're neo-Confederate freaks, and they like it, right? They like it.

• 24:58Peter Shamshiri?

  If like, a woke administration was like, white, too many whites, they're diluting our nation's diversity, or something. They just started terminating TPS status for white countries, or whatever, or halting asylum claims from South Africa, or whatever.

• 25:17Speaker 04

  It's gross how much they eat so much mayonnaise.

• 25:19Peter Shamshiri?

  Yeah. They are marinara saucing up our blood, the Italians. They are reguifying our blood. The Supreme Court would be right back to doing the weepy, fucking Declaration of Independence, "No consideration of race is justified," sort of, sort of opinion.

• 25:40Speaker 04

  We're breaking out the fountain pen, and like, a calligraphy signature at the end.

• 25:45Peter Shamshiri?

  Yeah. Justice Alito actually had an interesting back and forth with the lawyer about the contours of race across Europe and the Mediterranean. So, let's hear it.

• 25:57Speaker 06

  If you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are, are, all of them, are they all non-white?

• 26:14Speaker 07

  I understand that Syrians, I think, may be classified as white for purposes of the State Department, or for under, under certain government, you know, certain government programs. But again, I think race is, I think, you know, you'd have to poll the public to know what they think the race of a Syrian is. I certainly think they're not white.

• 26:34Speaker 06

  Poll the American people? Do they, do they think Syrians are white?

• 26:38Speaker 07

  I, I wouldn't think that most would, Justice Alito.

• 26:42Speaker 06

  Really?

• 26:43Speaker 07

  I really don't.

• 26:44Speaker 06

  How about Turks?

• 26:45Speaker 07

  I honestly haven't considered what racial component I would sort Turks in.

• 26:48Speaker 06

  How about Greeks?

• 26:49Speaker 07

  I, I don't know the answer to that either.

• 26:51Speaker 06

  How about Southern Italians?

• 26:52Speaker 07

  Well, certainly, certainly 120 years ago, when we had our last wave of European immigration, Southern Italians were not considered white. So, I think our concept of these things evolves over time.

• 27:05Speaker 06

  How about Spaniards?

• 27:06Speaker 07

  I think same answer.

• 27:07Speaker 04

  What is happening here?

• 27:10Michael Liroff?

  My man says, "Race is a social construct."

• 27:12Peter Shamshiri?

  Yeah. So, if you're not following, and you probably aren't, you got to be pretty deep in the right-wing weeds here, and lucky for you, your boy is, all right? What Justice Alito is doing is using the concept of race as a social construct against the libs, right? He's saying, "Because you can't clearly define where like, whiteness ends and non-whiteness begins, then how do you know what's racist and what's not?" This is the kind of argument that you need to be doing advanced-level racism to know. Your baseline racist is just like, "Look, that's, that guy's a little bit brown, don't like the culture that they're

• 27:55Peter Shamshiri?

  fostering in that country, different race than me, boom," right? But Justice Alito is operating on several levels of advanced racism. So, he knows about the idea that race is a social construct, and he's pointing it right back at you. He's saying, "Well, then how do you know? How do you know that I'm being racist?" When you're arguing before the Supreme Court now, you need to be ready for brain worms, right? You need to be so deep in right-wing brain worms that you know that Sam Alito is going to hit you with, "What race are Turks?" And the lawyer here, by the way, reached out to us and was talking about this exchange, and I will say, the only mistake he made is that he should have, he should have been clear, "No, Southern Italians are not white."

• 28:35Speaker 04

  Not Italians. You said Italians? No, definitely not.

• 28:38Michael Liroff?

  Definitely not.

• 28:39Peter Shamshiri?

  Turks, who knows, race is complicated. Southern Italians, no.

• 28:42Michael Liroff?

  Absolutely not.

• 28:48Michael Liroff?

  So.

• 28:49Speaker 04

  Yeah. If you thought that was bad.

• 28:52Peter Shamshiri?

  I know what you're thinking, listeners. That wasn't racist enough. What Sam Alito said wasn't racist enough for me. I need someone who's more racist.

• 29:00Michael Liroff?

  And, and boy, do we have someone who's ready to deliver.

• 29:04Speaker 04

  Yeah.

• 29:05Michael Liroff?

  Clarence Thomas writes a concurrence. It is classic.

• 29:07Peter Shamshiri?

  Clarence Thomas, a masterclass in psychology.

• 29:10Michael Liroff?

  Yes.

• 29:11Peter Shamshiri?

  Forthcoming.

• 29:11Michael Liroff?

  Yes. We have a classic Clarence Thomas concurrence here because he's writing for himself. He's taking a batshit crazy position and he's citing all his old opinions, which is always a joy when it's just a string of citations to Thomas J. concurring, Thomas J. dissenting.

• 29:28Speaker 04

  As I've said, and as I've said.

• 29:29Michael Liroff?

  Yeah.

• 29:30Peter Shamshiri?

  How many times do I have to say it before it's the law?

• 29:33Michael Liroff?

  Don't you fucking know? I've been telling you. I've been saying, I've been saying. This one, he takes aim at the equal protection argument. And he says, look, the 14th amendment, which is where the equal protection clause lives, was meant to bind the states. And we've talked about this on the podcast, right? This was, this is an amendment that prohibits the states from denying you equal protection and empowers Congress to pass laws to that effect. So unlike the Bill of Rights, which constrain the federal government, the 14th amendment is about constraining the states. It does not constrain the federal government. It empowers the federal government. And so he says, look, you're saying the government is denying you equal protection, but the equal protection clause doesn't apply to the federal government.

• 30:18Michael Liroff?

  Now, there is a case, there is a case from the 50s, Bowling v. Sharp, which said, yeah, that's true, but the Fifth Amendment has a due process clause that says you can't be deprived of liberty, amongst other things, without due process of law. And hey, all our conceptions of liberty now include equal protection of the law. It is infused in the law. It is a foundational principle now. And so we all understand part of being free, part of our liberty is not being discriminated against by the government. And so the Fifth Amendment has essentially incorporated the equal protection clause into its protections of liberty.

• 31:02Michael Liroff?

  And so when you want to say the federal government is not giving you equal protection of the law, you bring that claim under the Fifth Amendment.

• 31:08Speaker 04

  Yes.

• 31:09Michael Liroff?

  And Thomas says, well, that's some bullshit because I don't see the words equal protection in there at all. And I think Bowling v. Sharp was wrong. And I don't think the government has any duty to provide non-citizens equal protection of the law, period.

• 31:25Peter Shamshiri?

  He makes this argument that is actually very popular in right wing circles, which is you really can't do immigration law without.

• 31:35Michael Liroff?

  Oh, for sure.

• 31:35Peter Shamshiri?

  Discrimination against certain countries, right? So he's sort of like, look, like this is part of it. Discriminating against countries and people from certain countries based on their national origin is part of immigration law. And so basically we need, like, it's allowed.

• 31:51Speaker 04

  Yeah.

• 31:51Peter Shamshiri?

  Ignoring the obvious thing, which is animus, right?

• 31:54Michael Liroff?

  Right.

• 31:54Peter Shamshiri?

  Like, there's a difference between treating people from different countries differently and treating them differently because you hate Haitians or whatever, because you think Haitians are disgusting and eat pests. Like, those are different things, but not to Clarence Thomas.

• 32:07Michael Liroff?

  No, no, he purposely collapses the distinction there. But he does, you know, we've talked about this before. I talked about this in the United States v. Vallejo Madero episode. And he had a very long concurrence there where he sort of goes into this. But yeah, he has this idea that actually the important clause in the 14th amendment is the privileges and immunities clause, which is pertains to citizens. And he says that the equal protection clause, the due process clause are sort of describing the privileges and immunities of citizenship, which would create a permanent underclass of non-citizens with fewer or no rights.

• 32:46Speaker 04

  Exactly.

• 32:47Michael Liroff?

  Which in this context where you have a president saying they're poisoning the blood of our country, they're eating the dogs and the cats, and so we need to kick them out. If he says they're not sending their best, they're sending their rapists, they're sending whatever, that that's okay because they are not citizens. They are lesser. So the government doesn't have to treat them equally. As a matter of fact, you can racially discriminate against them. He doesn't come out and say that, but that is the clear, clear policy implication of this framework, which is that you don't have an equal protection right against the federal government unless you are a citizen. And since immigrants are definitionally not citizens, people on TPS, people on green

• 33:30Michael Liroff?

  cards, people on visas are not citizens, the government can racially discriminate against them. That is the Clarence Thomas position. And I think it's worth saying, you know, that is wildly dangerous and we are living in the sort of horror story example you use of why it's so dangerous with the way immigrants are being treated in this country right now.

• 33:58Peter Shamshiri?

  Right. And this is while they have constitutional rights.

• 34:01Michael Liroff?

  Yes.

• 34:02Peter Shamshiri?

  If you look at Clarence Thomas's work like 30 years ago, he was often in these like eight to one situations where he was the only dissenter, or he was like the only person concurring, and he was like concurring on some, with some weird theory of the Constitution. And a few years ago, people started to be like, actually, a lot of Clarence Thomas's positions are now like the mainstream conservative position, right? He was doing, you know, what they, the Constitution in exile thing. I'm the only one representing the true Constitution. And now you're seeing a lot more conservatives adopt it. And, you know, I think that's where a lot of people sort of left it, right? It's like, oh, now Clarence Thomas is kind of mainstream. But what's actually happened is Clarence Thomas has in a lot of ways shifted even further right.

• 34:45Peter Shamshiri?

  He actually keeps doing his little right wing Constitution in exile. It's just that his personal Constitution gets more and more outlandish.

• 34:52Michael Liroff?

  Right.

• 34:52Peter Shamshiri?

  And he has reiterated a lot of these ideas before, but every time he says them, they just get a little more radicalized.

• 34:59Michael Liroff?

  Right.

• 34:59Speaker 04

  I do think there's an important connection between the majority and this concurrence, though, which is that, you know, Thomas is writing in a unique way, in an isolated way, in a way that no other conservative will even join on to this opinion, right? It is that radical in terms of kind of like on its face, the language he's using, you know, going back to Bowling v. Sharp, the case that did incorporate the 14th amendment equal protection clause to apply to the federal government. That decision, a unanimous decision that did that, right? Like trusted, relied upon precedent for decades and decades and decades. So Thomas, yes, continuing to write singularly and in this isolated way, but in effect,

• 35:41Speaker 04

  just because the majority is saying, we're doing the 14th amendment interpretation.

• 35:47Michael Liroff?

  Right.

• 35:47Speaker 04

  They're getting to the same result and they want the same thing that Clarence Thomas wants, which is the underclass. They don't want the Constitution to apply to non-citizens.

• 35:57Michael Liroff?

  Right.

• 35:57Speaker 04

  They are racist.

• 35:58Peter Shamshiri?

  His A, B leads to C, whereas Alito's doesn't, right? But he, but he still gets there.

• 36:04Michael Liroff?

  Right.

• 36:04Speaker 04

  Exactly. And of course, which is why it's a concurrence. Clarence Thomas agrees, everybody's in agreement about, about the result here. Yeah, but Clarence Thomas actually has a more, you know, we would say a more accurate analysis of getting to that conclusion than the rest of the conservatives are prepared or have the balls to say.

• 36:25Michael Liroff?

  Yeah, yeah. To use some legal jargon, I would say the majority is all about legal bullshit over what is de facto segregation.

• 36:33Speaker 04

  Yes.

• 36:34Michael Liroff?

  Thomas is like, no, we need de jure segregation, baby. We need, we need it formalized in the law.

• 36:45Michael Liroff?

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• 39:06Michael Liroff?

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• 41:38Speaker 04

  The liberals are in dissent here. This dissent is written by Kagan. It is a good dissent. You know, sometimes when I see a Kagan dissent, I think, oh, we're about to get so technical.

• 41:50Peter Shamshiri?

  Time to be bored.

• 41:51Speaker 04

  Yes. We're about to miss what is substantively important here. We're about to miss the real harm and the moral harm that the conservatives are doing. I think Elena actually gets it pretty right relatively for a Kagan dissent.

• 42:06Peter Shamshiri?

  100%. Sometimes when the technicalities and the morality overlaps perfectly, Kagan is on point.

• 42:13Speaker 04

  Yeah, she's in her bag.

• 42:15Peter Shamshiri?

  That's when you bring her in and she's top-notch.

• 42:17Speaker 04

  Totally, totally. So it's not just about the procedure, which, you know, Kagan is so like into. She does start with the procedure here and how the administration fucked up the procedure. You know, just on this point of like the meaning of determination. Remember, the procedural argument that the plaintiffs are saying is that the Secretary of DHS, Kristi Noem, didn't do the right procedure in making the determination to terminate TPS status for Haiti and for Syria. The majority saying, well, the process, the steps that they took to go to the determination, that's all just the determination and can't be reviewed by courts. Elena Kagan is saying, no, read the fucking dictionary.

• 43:02Speaker 04

  That's not what determination means. And she's got a great quote because it's not just the dictionary definition of determination that's different from the majority's definition of determination. This definition of determination is different from the conservatives' definition of determination in another case. So she says on the meaning of determination, "Very broad might be one description for this reading of the term determination. Very strange is another. Just last term, this court observed that the word determination is a term of everyday usage," and then said what it means. "The, quote, 'settling and ending of a controversy, the resolving of a question by argument or

• 43:45Speaker 04

  reasoning, the decision arrived at or promulgated, or a determinate sentence, conclusion, or opinion.'" That is from a case last term. So last year.

• 43:59Peter Shamshiri?

  It's very funny that it's last year, I gotta say.

• 44:01Speaker 04

  That is from a case last year about the EPA. So, "Missing from those definitions," Elena Kagan says, "or any other that you, as an English speaker, would naturally come up with is any suggestion that events preceding a determination, including required procedural steps, are properly referred to as the determination itself." I love this here. She's spicy, she's sassy, she's like, don't we all speak English? Come on, you know?

• 44:31Peter Shamshiri?

  Yeah. As always, I could use one line that's like, by the way, here's why they're doing this.

• 44:35Speaker 04

  Of course, yes, of course. But I think she gets there on the constitutional question, on the racism question. She's calling out the blatant racism, where she's talking about the majority's holding, the majority's conclusion that the plaintiffs here have not actually shown, you know, any overt racism in these decisions about TPS designations. She says, "No, no, no. The evidence they've offered includes statements by the president so repellent and racially inflected that the majority declines to put them in print." And Elena Kagan says, "I'm putting them in print." She puts Trump's quotes in the record of the Supreme Court reporter.

• 45:18Speaker 04

  She says, "Trump said, quote, 'Haitians probably have AIDS. Haiti is a shithole country.'"

• 45:24Peter Shamshiri?

  Correction, he actually said, "Many Haitians probably have AIDS." I mean, guys, come on, it's just science.

• 45:32Speaker 04

  It's neutral. She quotes Trump, "Haiti is a shithole country. Haitians are poisoning the blood of America. Haitian immigration is like a death wish for our country." Just last year, he confirmed the quote that he said during his first term. "Why is it we only take people from shithole countries like Haiti and Somalia? Why can't we have some people from Norway and Sweden?" She wraps up here by saying, "This is racist. It is not race neutral." "The majority briefly replies that those remarks are not overtly racial, but it's hard to know what that means. Haitians," Kagan says, "are black. Norwegians and Swedes, not so much. The references of filth, disease, and primitiveness are shot through with racial stereotypes and tropes.

• 46:17Speaker 04

  It is hard to imagine the statements being made today of any white community." Of course.

• 46:23Peter Shamshiri?

  Kagan, Kagan.

• 46:25Speaker 04

  Whoa, whoa.

• 46:26Peter Shamshiri?

  The accusations you're throwing around here.

• 46:29Speaker 04

  Right. More rude than Donald Trump.

• 46:32Peter Shamshiri?

  I almost think she like undersells how ridiculous it is that Alito, it's not just that he doesn't mention these things. It's that part of why he doesn't mention it is so that you don't see how wrong he is. But part of why is so that he doesn't have to address the actual statements, right? He abstracts them into categories, like vague categories, so that the reader doesn't actually know what Trump said. And then he's like, nothing here is overtly racial. But that's his way of getting around the whole poisoning the blood thing. That's him getting around the AIDS comments. It's just so transparent. It's just so fucking obvious that, I don't know, I wish, I wish Kagan said it.

• 47:14Peter Shamshiri?

  I wish Kagan was like, "One conclusion you could draw from this is that the majority, no matter what they said, agrees."

• 47:20Speaker 04

  Yes. Peter, you mentioned Arlington Heights. It's this case from the late 1970s. It's about race discrimination in housing and zoning ordinances about what housing is going to be built and who is able to get that housing. And in that case, there's this standard that's established about racial animus, about if there's racist motivation for a policy. And that standard, again, having been applied to equal protection claims over decades, is that if there is even one racist motivating factor, among others, it doesn't even have to be the primary one, then race is part of the motivation for the discrimination and

• 48:04Speaker 04

  it therefore is a violation of...

• 48:08Michael Liroff?

  It taints the entire thing.

• 48:09Speaker 04

  Right. It taints the entire thing and is therefore a constitutional violation. People are being illegally and unconstitutionally discriminated against on the basis of race. And so she's connecting the facts of this case to this standard. You cannot deny that race with these quotes, with all of the evidence. You cannot deny that race is a motivating factor here. And even if it's not the primary one, according to our precedent, according to decades of how we've interpreted these things, if it's even one, as they decided in the affirmative action case, for example, then the policy should fail.

• 48:50Peter Shamshiri?

  Yeah. There was an interesting piece about the Roberts Court jurisprudence in The Atlantic by Adam Serwer, where he pointed out that you can actually see a lot of similarities between their jurisprudence and the jurisprudence of Korematsu, the case that allowed for the internment of Japanese people and Japanese Americans during World War II. He sort of says that, you know, the colloquial and also the Roberts Court's sort of portrayal of that case is that there were express racist motivations, right? That we were sort of treating the Japanese as a distinct race and discriminating against them because of

• 49:32Peter Shamshiri?

  that. But he's like, look, that's, if you read Korematsu, that's not actually how the court decides their own reasoning. The court provides a little veneer of race neutrality. They're sort of like, look, there are like these overarching national security concerns here. And maybe, you know, there, there's sort of a built in racial element, but that's not the motivation here, right? The motivation isn't racism against the Japanese, right? It's just that this is sort of the, the necessary output of the war. Or this is something necessitated by the fact that we are at war with Japan. He's just sort of pointing out that the idea that like, there used to be this like overtly racist court.

• 50:14Michael Liroff?

  Right.

• 50:14Peter Shamshiri?

  And now we've moved past that to, to racial neutrality is a myth that is perpetrated by the court itself. And in fact, their reasoning mirrors

• 50:24Michael Liroff?

  Right.

• 50:24Peter Shamshiri?

  some of the most horrific decisions of the last century.

• 50:28Speaker 04

  Yeah. In that case, the justice who wrote the majority opinion in Korematsu, Hugo Black, says, "To cast this case into outlines of racial prejudice without reference to the real military dangers which were presented merely confuses the issue," right? Like, don't, don't bring race into this. Of course, Korematsu widely regarded as one of the worst Supreme Court cases ever, including like conservatives who pay lip service to that idea as well, that this was a bad Supreme Court decision. And I think we really should see the cases on race, the cases about equal protection that are coming out of this Roberts Court, as this one, I mean, just on its face, as being progeny of Korematsu. This is a

• 51:13Speaker 04

  Korematsu decision for the context of our time, right? National security is being argued about why the Trump administration is doing this to immigrants. Race is a factor here. And conservatives are saying, when you talk about race as part of these decisions and part of these policies, you're confusing the issue and you're wrong.

• 51:34Peter Shamshiri?

  Yeah.

• 51:35Michael Liroff?

  We talked about this in our Trump v. Hawaii episode, which was about the Muslim ban. That was the case that purported to overturn Korematsu. It says Korematsu is

• 51:44Peter Shamshiri?

  In a footnote.

• 51:45Michael Liroff?

  In a footnote, yeah. But actually recapitulated its reasoning in large part. And I think you see a lot of the Roberts Court decisions are just sort of recapitulations of Korematsu, right? Like the partisan gerrymandering cases where they say it's okay to racially gerrymander if you're doing it for partisan reasons. That's Korematsu, right? Like when they allow discrimination based on gender identity or sexual orientation because of religious objections, that is Korematsu. You're finding a supposedly neutral or non discriminatory reason to allow for discrimination, right? Overt animus based discrimination. This court engages in Korematsu

• 52:30Michael Liroff?

  type reasoning constantly, every term, every term.

• 52:35Peter Shamshiri?

  I want to point out one thing that you see from the Trump administration's policy that I think is slightly under discussed. The right wing talks about legal immigration all the time. Anyone protected by TPS is a legal immigrant, right? They are here perfectly legally. They are within their rights. They're documented. Trump described Haitians in Springfield, Ohio as illegal. He was, of course, wrong about that. But part of the policy of this administration is turning legal immigrants into illegal immigrants, right? You revoke TPS, you revoke visas, you make it harder to get visas. All of these people who were previously here perfectly legally are now here illegally, right? I don't think our

• 53:20Peter Shamshiri?

  audience needs to be told this, but their actual concern is not illegal immigration.

• 53:25Michael Liroff?

  Right.

• 53:25Peter Shamshiri?

  There are plenty of people who were here perfectly legally, who they just said were here illegally and then eventually made it so, right? They made it so that their presence here was illegal or will be illegal. And then they act upon it. And I don't know, I just think it's important to keep in mind because there are 350,000 Haitians protected by TPS who no longer will be, right?

• 53:49Michael Liroff?

  Right.

• 53:49Peter Shamshiri?

  They have created 350,000 soon to be illegal immigrants, right? This is not people who are concerned with rule of law or process or anything like that. They just want non-whites out of the country.

• 54:03Speaker 04

  Yeah.

• 54:03Michael Liroff?

  During the election, we talked about, you know, Trump threw around the number 20 million and a lot of people like nitpicked with that number. But, but I think we said, and correctly, certainly not the only ones, that the point of that number is not, you know, to exaggerate the number of quote unquote illegals here, right? Undocumented people here in this country. The point is a statement, you know, a mission statement for ethnic cleansing, right? And you just manufacture the 20 million people you want to kick out of the country. And that's what this looks like, right? And another example is something that's happening right now, is they're taking people with hearings, their next immigration hearings are in 2020, late 2026, or as far out as 2028, sending them a physical letter

• 54:48Michael Liroff?

  to their mailbox saying, you know, your case is actually next week. And then anybody who misses that because they didn't get the letter, didn't see the letter in time, or literally just cannot make time for it for one reason or another, gets ordered deported. So these are documented, law abiding, like all this stuff, you know, people claim to want out of their immigrants, right? They're good immigrants. And the Trump administration is purposely trying to screw them out of their legal status because this isn't about legal versus illegal, documented versus undocumented. This is about racism. This is a campaign of ethnic cleansing. And that's, that's what's happening. That's what we said would happen and it is what's happening now.

• 55:34Peter Shamshiri?

  By the way, guys, I feel like we have to mention this before we sign off here. Amy Coney Barrett has two adopted Haitian children.

• 55:42Michael Liroff?

  Right. That's not really intention with signing on to this ruling.

• 55:45Speaker 04

  Apparently not.

• 55:46Peter Shamshiri?

  Well, I think, I mean, you would, if you had some kind of respect for them as human beings, you would think that like endorsing a policy that was motivated by someone saying that they are poisoning the blood of this nation, you'd think that someone like Amy Coney Barrett would have enough self-respect and respect for her children to be like, you know what? Maybe that's racist. Maybe that is overtly racial.

• 56:13Michael Liroff?

  Yeah.

• 56:14Peter Shamshiri?

  The Amy Coney Barrett thing is, it's sort of like Clarence Thomas, where you're like, I don't know what it is.

• 56:19Speaker 04

  I don't want to go deep into it. Yeah.

• 56:21Peter Shamshiri?

  Let's, let's get a psychiatrist in here, you know? The psychology is all over the place. There's so much. Amy Coney Barrett, not even writing.

• 56:30Michael Liroff?

  Nothing to say.

• 56:30Speaker 04

  Yeah.

• 56:31Michael Liroff?

  Nothing to say.

• 56:31Peter Shamshiri?

  It's just happening. She's like, I agree. I agree. Yeah. Psychology dudes. Psychology is so complicated and not enough of us are talking about it.

• 56:44Peter Shamshiri?

  All right. Next week, premium episode. We're going to be talking about a few things. We're going to be talking about the purchase of SCOTUS blog, the preeminent Supreme Court news operation by the Dispatch, a weird bunch of conservatives and what they've done with the place. We're going to be talking about whether Donald Trump can steal midterm elections, right? Is he finally going to do it? We know he wants to.

• 57:12Speaker 04

  Yeah.

• 57:12Peter Shamshiri?

  He would love to fully steal an election. Is he finally going to do it? And maybe whatever else is in the news. Follow us on social media at 54pod, including TikTok, folks.

• 57:22Speaker 04

  We're on there.

• 57:23Peter Shamshiri?

  We're getting started. TikTok, Instagram. We're doing very youthful stuff with our social media. People are saying that I'm not 40. People are saying that I'm a normal age.

• 57:36Speaker 04

  We out here.

• 57:38Peter Shamshiri?

  Subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium and ad free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

• 57:48Michael Liroff?

  Bye, bye.

• 57:49Speaker 04

  Bye, y'all.

• 57:51Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.