Mullin v. Doe: Whitewashing Anti-Blackness

‍Mullin v. Doe is notable for the logical contortions that the Court performed to deny what was right in front of its face. It also raises stark questions about this Court’s ability to detect and condemn anti-Black racism. President Trump’s stigmatizing statements about Haitian immigrants should have easily sufficed to show racial animus when the administration terminated Temporary Protected Status (TPS) status for Haitian immigrants. This brief essay describes and dissects the various arguments that Justice Alito’s majority opinion unfurled to avoid that conclusion. It then concludes by linking the opinion to a broader cultural phenomenon of “performative politics,” and shows that it extends to the right wing.

The majority worked hard to launder the Trump administration’s virulent racism. The Court’s initial method was to bury the comments—to refuse to print them in the U.S. reports. As Justice Kagan pointed out in dissent, Justice Alito declined to recount the actual statements by President Trump and former Department of Homeland Security Secretary Kristi Noem that gave rise to the respondents’ claim of racial animus. This is extremely unusual and suspect. How can a court analyze statements if it can’t bear to face them?

This is what Trump said about Haitian immigrants, as printed in the dissent:

He asked, “Why is it we only take people from shithole countries” like “Haiti [and] Somalia”? He claimed that Haitians “probably have AIDS.” He said that Haitians, among other global South immigrants, are “‘poisoning the blood’ of our country.” He claimed that Haitians are “eating the dogs . . . . They’re eating the cats. They’re eating—they’re eating the pets of the people that live [in Springfield, Ohio].” He went on to say that Haitians are also eating “other things too that they’re not supposed to be.”

The most risible sentence in Mullin v. Doe—if not the entire last term of the Court—is the following: “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.” By hiding the actual statements from the reader, who must do independent research to identify Trump and Noem’s statements or fast forward to the dissent to see if they are recounted there, Justice Alito tried to bolster the plausibility of his claim that there was nothing “overtly racial” here. It is as if he knew that quoting the challenged statements before launching into his analysis would have prevented him from making the “nothing overtly racial” claim with a straight face. Justice Kagan retorted: “The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community.”  If Trump’s statements do not count as anti-Black racism, what does? Notably, the majority contained all six Justices who purported to “eliminat[e]… all discrimination” and proclaimed that the Equal Protection Clause prohibits racial stereotyping in Students for Fair Admissions v. Harvard University.

Justice Alito’s opinion gave cover to Trump’s anti-Haitian rhetoric by describing the challenged statements at a high level of generality and grouping TPS countries together. For instance, he wrote that “a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations” and referred vaguely to the “designated countries,” even though the equal protection claim that the Court agreed to review was based solely on the administration’s claims about Haiti. Grouping these countries together and minimizing the claims specific to Haiti facilitated the characterization of Trump’s and Noem’s statements as general policy critiques, not animus aimed directly at Haiti. Yet as the dissent and the NAACP Legal Defense Fund’s amicus brief made clear, Trump also attacked Haiti specifically.

Moreover, it appears that the Court dodged the central legal question. That is, it failed to ask whether Trump and Noem’s decision rested on racial animus. Instead, it asked if a hypothetical President could have made such statements without being motivated by racial hostility. This suggests that the Court applied minimum rational basis review, which allows the Court to uphold policies based on any rationale that could have conceivably motivated the government and does not require the Court to identify the actual rationale. This is a test designed to uphold laws. Even though Justice Alito assumed that the relevant test was a form of “heightened scrutiny,” it morphed into the weakest version of the rational basis test.

Consider the majority opinion’s particular phrasing in the following passage: “For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations. The criteria for TPS designations guarantee that many, if not most, designated countries have such characteristics.” Alito similarly concluded that “all expressed policy views [by Trump and Noem] . . . could rest on race-neutral justifications.” But that falls far short of analyzing if they did in this case. Instead of answering the question demanded by precedent, Justice Alito simply changed the question. His reasoning appears to be (1) a person could conceivably make these statements without harboring racial animus; and (2) therefore, Trump and Noem did not harbor racial animus.

Interestingly, in recasting Trump’s criticism of TPS as policy-based rather than race-based, Justice Alito suggested that Trump refused to enforce a duly enacted law. The revocation was upheld as mere resistance to admitting people coming from “hellish” conditions, yet those groups are exactly who Congress chose to protect when it enacted TPS. Trump has openly admitted a preference for migrants from wealthy, stable, Western democracies, such as Norway, but those countries plainly do not qualify for TPS. If TPS under Trump admitted such people, he would stand the program on its head. Justice Alito’s attempt to protect Trump from a charge of racism ends up depicting him as categorically refusing to enforce the law and usurping Congress’ judgment concerning TPS.

Although he did not directly address their statements, Justice Alito apparently rejected Trump and Noem’s rationale for wanting to end TPS protection. He declared: “But poverty and deprivation are no reflection on character, and there is no justification for denigrating the character of Haitians who suffer from and bear no responsibility for their country’s ills.” He finally acknowledged that someone had “denigrat[ed] the character of Haitians,” although he declined to name “Trump” or “Noem” as the culprits. Group-based denigration—linking national origin with assumptions about one’s character—surely qualifies as racial animus. But Justice Alito refused directly to admit that. Justice Alito also lamented the coarsening of public discourse, especially concerning critiques of Haitians, yet again he declined to identify Trump as the main character in that cultural trend. Justice Alito wanted the reader to know that he regards the denigration of Haitians as offensive, and the Court’s opinion does not endorse that stereotype. Indeed, the majority went out of its way to praise Haitians, stating: “[B]eginning with the more than 500 Haitians who fought to support American independence at the Battle of Savannah in 1779, Haitians have made many positive contributions to the United States from the very beginning, and they continue to do so today.”

The Court’s decision ultimately concluded: “But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti’s TPS designation was based on the race of the Haitian people. Ironically, both Doe and Miot respondents identify a strong, race-neutral explanation of these officials’ statements: the present administration’s general stance on immigration and its obvious antipathy toward past administrations’ TPS policies.” Justice Alito has what Gen X readers might recognize as an Alanis Morissette problem: he does not understand the meaning of “ironic.” Justice Alito’s opinion failed to recognize that the Trump administration has “antipathy toward past administrations’ TPS policies” because they protected people who Trump regards as hailing from “shithole countries.” Justice Alito seemed to think categorical opposition to admitting people from poor Global South countries proves that Trump is not a racist. That’s neither persuasive nor, as Alito puts it, “ironic[].” It is as if a White boss, accused of racism for firing all his Black workers, defended himself by saying: “But I also fired all the Latinos!”

Justice Alito resisted this logic by arguing that the Trump administration terminated TPS for a “racially diverse group of countries.” Denigrating people from Africa, the Middle East, and Asia—nations that Trump has collectively referred to as “Third World”—in addition to Haitians hardly exculpated Trump from the charge of racial animus. Alito deflected the respondents’ characterization of all these nations as “non-white” by arguing that under their methodology, the only way for the administration to prevail would be “the termination of a TPS designation for a Nordic or Germanic country.” Because “no such test case has come up during the present administration,” the majority found the evidence of bias in favor of predominantly White countries to be lacking.

But this ignored the one group that Trump has fixated on in granting refugee status: White South Africans who claim to flee violence from Black South Africans. Curiously, neither the majority nor the dissent mentioned Trump’s special attention to White people in Africa. Rather than blaming White South Africans for their circumstances as he does Haitians, Trump has celebrated White South Africans as innocent victims of violence perpetrated by Black people. Whiteness, in his eyes, makes them pure and worthy and protects them from negative stereotypes attached to poverty and violence in their country.  Granting a “racial preference” to White South Africans advances Trump’s projects of inverting our civil rights laws through fabricated claims of White victimization and White Christian nationalism.[1]

Upon close inspection, Justice Alito’s efforts to distance himself and the Court’s conservative majority from Trump’s racism are revealed to be merely performative. He recognized the offensiveness of Trump’s racism and disapproved of it rhetorically, yet he went on to rubberstamp Trump’s decision. In the aftermath of the police killing of George Floyd and the ensuing racial reckoning in 2020, a cultural conversation emerged about people and corporations that perform anti-racism or other progressive stances to bolster their reputations. Such people lack a genuine commitment to anti-racism. They embrace it only when it is popular and only when it costs them little or nothing. I have coined a related term, “equality on the cheap.” Critiques of performative politics have typically aimed at White liberals, such as people who posted black squares on social media to signify support for #BlackLivesMatter and bought books by the likes of Robin DiAngelo at the peak of the racial uprising.

Mullin, however, suggests that performative politics extend even to Republicans and even to extremely conservative Supreme Court Justices. Justice Alito went out of his way in his opinion to repudiate the racial stereotypes driving Trump’s immigration agenda. But his rhetoric ultimately was vaporous. It changed nothing. Indeed, it is reminiscent of Justice Alito’s same-term opinion that claimed to hold that compliance with the Voting Rights Act constitutes a compelling state interest, even as he gutted the Act. When the Court upheld Trump’s first Muslim ban in 2018, Justice Kennedy similarly offered a feeble disapproval of Trump’s racist logic, even as he failed to say Trump’s name and voted with the majority (which included Alito) to uphold Trump’s Islamophobic policy. Chief Justice Roberts also plays this game. In upholding Trump’s Muslim ban, he claimed to overturn the Court’s Korematsu decision. But Justice Sotomayor argued that he actually extended Korematsu’s racist logic.

Make no mistake. Republican-appointed Justices are actively facilitating Trump’s racist immigration agenda, but they want readers to know that they are not personally racist.

‍Copyright © 2026 Russell K. Robinson, Walter Perry Johnson Professor at Berkeley Law, Faculty Director, Center on Race, Sexuality & Culture.

[1]See Russell K. Robinson, The Fall of Civil Rights and Rise of Anti-White Discrimination (forthcoming Mich. L. Rev. 2026); Russell K. Robinson, Justice Kennedy’s White Nationalism, 53 UC DAVIS L. REV. 1027 (2019).