0:00:00.0 Speaker 1: Palmer against Thompson.

[music]

0:00:07.0 Leon: Hey everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Palmer v. Thompson. This case comes from the Civil Rights era when segregationists were hard at work finding ways to prevent integration.

0:00:26.1 Speaker 3: Pools were unwelcome waters. In Cincinnati, Whites threw nails and glass into pools and poured acid and bleach. In Florida, cities closed their pools instead of integrating, and private pools took their place.

0:00:39.6 Leon: In this case, the court decided that the Equal Protection Clause does not prohibit the city of Jackson, Mississippi from avoiding integration by closing its public pools. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:57.4 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights empty, like Fox News' primetime lineup without Tucker Carlson.

0:01:08.1 Rhiannon: Wow.

0:01:09.2 Michael: That's right.

0:01:11.2 Peter: Now, we're always a little bit behind the news cycle.

0:01:14.5 Rhiannon: Sure.

0:01:16.1 Peter: But of course this week Tucker Carlson left Fox News. By the time our listeners hear this, I imagine he will already have signed with Infowars.

[laughter]

0:01:25.3 Rhiannon: Yeah, something like that.

0:01:26.1 Michael: One America News Network.

0:01:28.9 Rhiannon: Or announced his candidacy for president. Something absolutely absurd.

0:01:34.3 Peter: He will be freely using the J word by the time this comes out. So...

0:01:38.2 Michael: The J word?

0:01:39.5 Peter: Get ready for that. Yeah, juice. I was gonna say juice.

[laughter]

0:01:44.9 Rhiannon: Oh no.

0:01:45.0 Michael: Oh, God.

0:01:45.2 Peter: Alright. Today's case, Palmer v. Thompson. This is a case from 1971 about segregation, and as cases from 1971 about segregation go, it's not good.

0:02:03.8 Michael: Yeah.

0:02:03.9 Rhiannon: Yeah. We don't...

0:02:03.8 Michael: It's a bad one.

0:02:03.9 Rhiannon: Not a good one.

0:02:04.2 Michael: Yeah.

0:02:05.0 Peter: In the '50s and '60s, of course, there was a consistent struggle between the federal government on one hand and the state and local governments in the South, on the other, on the matter of segregation. Federal courts would order southern jurisdictions to integrate, and those jurisdictions would figure out some way to either avoid the order or otherwise gum up the works.

0:02:29.2 Rhiannon: Yeah.

0:02:30.5 Peter: The city of Jackson, Mississippi was ordered by federal courts to desegregate its public facilities, including its public pools, but the city did not desegregate its public pools. Instead it shut them down entirely. Black residents of the city sued claiming this was a violation of the Equal Protection Clause, because obviously the motivation behind the move was to deny public services to Black people. And also a violation of the 13th Amendment, which is about the abolition of slavery. We'll get into that in a bit, but the Supreme Court in a 5-4 decision said that the motivation behind the decision to shut down the pools was irrelevant and allowed for the decision to stand. So Rhia, I'm gonna hand it over to you for the background.

0:03:25.6 Rhiannon: Yeah. Something that you wouldn't learn about reading this case but is absolutely relevant is a long history in the US of public pools, specifically, being a battleground on which social issues are fought. There's a good amount of historical and sociological scholarship on this actually, which I learned a lot from with just a brief dive into this stuff in preparation for this episode. What public pools say about class divisions in the US, the relationship between public accommodations and immigrants in the US, gender integration, racial integration, public pools are really a hotspot for all of these political, social, culture wars. There's this professor at Harvard Law named Randall Kennedy who writes about race and the law. He wrote at one point that, "More intense opposition to desegregation was focused upon pools than any other site of recreation." There's also an author, Jeff Wiltse, who wrote a book about public pools called Contested Waters. He argues in that book that public pools were harder to desegregate than public schools after Brown v. Board of Education. And in part it's because of fucking cases like this in federal courts and at the Supreme Court. So at any rate, there's a really long history of racial discrimination at public pools in the US.

0:04:46.9 Rhiannon: It's in the south, but really across the country. Ever since the first public pool, which was actually a bathhouse for immigrant workers, opened in Boston in the late 1860s. And I think obviously, it's a given that racial segregation enforced by law is offensive and gross. But I also just wanna make explicit, it's not just merely offensive in terms of Whites wanting to be separated from Black people and other races. Segregation is a tool. It's used within racial hierarchy as part of the effort for Whites to monopolize authority, monopolize access, monopolize participation in society in order to continue the subordination of people of color. Right? Especially Black people. Especially at this time in American history. We're talking '50s, '60s, '70s, right? So let's talk about this case as an example. Beginning in 1962, plaintiffs in Jackson, Mississippi sued alleging that the city's enforcement of segregation in their five public parks was a violation of the Equal Protection Clause of the 14th Amendment. Like Peter said, they also alleged that this was a violation of the 13th Amendment. Now, federal courts granted the plaintiffs a declaratory judgment.

0:06:01.5 Rhiannon: Federal courts agreed with the plaintiffs, but they only issued a declaratory judgment, basically saying like, "Yeah, I guess they're right on the law, but we're not going to award them any remedy." Right? The plaintiffs didn't get an injunction or anything like that. In that district court opinion, this is a federal judge, Sidney Mize, writing in this initial case in 1962, the opinion says, "As the city of Jackson rebuilt from the ashes of the Civil War, it's White citizens occupied one area and its colored citizens chose to live together in another." Note, chose. Members of each race have customarily used the recreational facilities located in close proximity to their homes. The defendants believe that the welfare of both races will best be served if this custom is continued.

0:06:55.8 Peter: A sort of separate and yet still equal kind of vibe going on.

0:07:01.2 Michael: Interesting.

0:07:02.5 Rhiannon: Yeah. Right.

0:07:03.2 Peter: I don't know if anyone's ever put into those terms before, until me just now.

[laughter]

0:07:08.5 Rhiannon: Judge Mize goes on to say, in this opinion, that the defendants, this is the city of Jackson, they already understand that they can't legally enforce segregation in their public parks, but that it is, "A fact that "voluntary separation of the races" has operated smoothly and apparently to the complete satisfaction of all concerned for many years." I'm gonna note here, it's obvious it's not to the complete satisfaction of everybody concerned since there's a fucking lawsuit.

0:07:40.3 Peter: There's a lawsuit, yeah.

0:07:42.9 Rhiannon: But okay. And he says that city officials in Jackson are "outstanding high class gentlemen," and also in this opinion paints racial justice advocates as committing "deliberate attempts to create racial friction." But yeah, in the end he does say, "Yeah, the Constitution, you can't segregate your public parks, Jackson, Mississippi." So the city sort of started to desegregate to some extent. They desegregated, they said, there're public parks, there're auditoriums, there're public golf courses and the city zoo, but the public parks actually included public pools. And instead of desegregating the public pools, like Peter said, city council in Jackson, Mississippi voted to surrender their lease of one of the pools and close the other four, which were city owned. And the reasons the city gave were that there would be riots if the pools were desegregated. So they needed to keep the peace. And that maintaining integrated public pools would not be economically feasible. So the plaintiffs petitioned the city to reopen the pools, obviously as integrated public pools. The city refused. So the plaintiffs filed suit again, this time all the way up and down the federal fucking judiciary. Every step of this case through the appellate process, the city of Jackson wins.

0:09:08.1 Rhiannon: District Court, Fifth Circuit, and fucking Supreme Court here. The District Court, in fact, dismissed the lawsuit. The Fifth Circuit affirmed that dismissal. And Fifth Circuit judge Richard Revis, wrote in the majority opinion there at the Fifth Circuit that public pools are an unessential public facility. There's no constitutional rule that a city has to open an integrated public pool. He says, this is not a problem of discrimination or racial animus because the pools are closed for everybody now. Doesn't matter if you're White or Black. And he says that the city's stated motive of preservation of order and maintenance of economy, those motives were legitimate. So that's the Fifth Circuit. The plaintiffs appeal to the Supreme Court, and folks, it doesn't get much better.

0:10:01.3 Peter: Yeah. Now, by the way, part of their justification was like, well, this might result in riots if we integrate the pools. But they had already integrated parks, zoos, all sorts of stuff. The schools presumably. And they were like, but no, our people will not stand for the pools. That is their final straw. Trust us.

0:10:23.8 Rhiannon: Just fucking stupid.

0:10:24.6 Michael: Well, I won't say this. I obviously, I don't think that's true, but to Rhia's earlier point though, it's worth talking a little bit about why pools are sort of this situs of racial tension above and beyond so much else. And it's like you're bathing next to someone, right? You're disrobing next to someone. There's been a lot of writing about the sexual hangups that a lot of White people had about Black Americans at these times, White men about White women being attracted to Black men, these stereotypes and tropes and fiction that persist today. And so this is sort of, the pool is an area where it's like the intimacy brings all this stuff sort of to the front, right?

0:11:19.9 Rhiannon: Right. Your puritanical White supremacist ideals are very much sort of spotlit in a public pool. Right? There's the public accommodations layer, there's the pool layer of like, we're all together now in our bathing suits, it really is like a unique place.

0:11:40.8 Michael: Yeah.

0:11:43.5 Peter: Have you ever tried to grab what you think is your friend's ankle in a public pool, and then turns out to be a stranger's ankle?

0:11:49.4 Michael: That's... Oof.

0:11:51.1 Peter: That's intimacy.

[laughter]

0:11:55.1 Peter: So let's talk about the law. The legal question here is whether closing the pools violated the 14th Amendment's Equal Protection Clause. And we'll talk about the 13th Amendment a bit later. Now, this is actually an early case highlighting a very important aspect of equal protection law, which is the question of how you analyze an equal protection claim. How do you know if a law violates the equal protection clause? On one hand you have discriminatory intent or motive, meaning that the people passing the laws were driven to do so by a discriminatory purpose. They wanted to discriminate, that's why they did it. On the other hand, you have the impact of the law. Does it disproportionately impact a certain race, a certain religion, gender, et cetera? The court to this day wrestles with whether and in what circumstances each of these analyses actually apply and what the scope of those analyses are. And this was an interesting case because on one hand, you can argue that there is no disparate impact. Right? They're just closing the pool for everyone. There's a reasonable argument that it impacts all racial groups equally. Now, there's some nuance there I'm glossing over, but you can see that argument pretty cleanly.

0:13:11.0 Peter: On the other hand, the motivation is plainly racist. We all know what they're doing here. Right? They don't wanna integrate the pools, and so they're closing them down. So this case becomes one of the first to tackle the question of, what do you do when the law has a racist purpose? Justice Hugo Black writes the majority opinion. It essentially has two substantive parts. The first part is where he cast out on the idea that the motivation here was racist at all. He highlights the fact that this decision applied to Black and White residents equally. Right? And then he says, "Yes, there is some evidence to support the idea that this was motivated by racism, but there was also "substantial evidence" that integrating the pools was not safe or economically sustainable." Worth noting that the only evidence that he's pointing to is just city officials saying it.

0:14:10.5 Michael: In an affidavit.

0:14:10.6 Rhiannon: Right.

0:14:11.2 Michael: Yeah.

0:14:12.2 Peter: They're not doing an analysis. They don't have charts or anything. They're just like, "No, this might cause riots and also it's not economically feasible." And that was it. That's the evidence.

0:14:21.5 Rhiannon: Exactly.

0:14:22.5 Michael: A bunch of racist segregationists said, "Man, it'll be really expensive and dangerous to integrate pools." And the Supreme Court was like, "Sounds right."

0:14:32.6 Rhiannon: Good enough for me.

0:14:33.2 Michael: That's it.

[laughter]

0:14:35.2 Peter: Well, they are high class gentlemen.

0:14:37.5 Michael: That's right.

0:14:38.3 Peter: According to the lower court, so...

0:14:40.6 Rhiannon: Right. Right.

0:14:40.7 Michael: The lower court judge that Rhiannon mentioned earlier, Judge Mize, by the way, also a noted segregationist, it's worth saying, in other cases said there was no policy of excluding Black students at Ole Miss while the governor was out there being like, "We will never have a Black student at Ole Miss." Up and down, the entire government apparatus at this point is segregationist, right?

0:15:03.4 Peter: Now, the second part of this opinion is the key component. What Justice Black says is that the motivation behind the law doesn't really matter. He says, "No case in this court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it." He makes a couple of arguments. He says that it's hard to discern the true motive when legislators or officials do something, when they take an action. For example, there might be multiple motivations driving a legislator, and who was a judge to try to decipher all of that, right?

[laughter]

0:15:43.9 Rhiannon: How would we even do that?

0:15:47.4 Michael: Yeah.

0:15:48.4 Peter: This is a common refrain in these cases, and conservatives use it in other contexts to talk about how you can't truly determine a legislator's intent, right? Or a legislature's intent. And it's true that motivation and intent are complex things, but it's like essentially all of criminal law revolves around courts discerning defendants' intent, right?

0:16:10.2 Rhiannon: Yes.

0:16:11.5 Peter: Criminal prosecutions are built around showing that the defendant intended to do something illegal. Right? Otherwise, generally speaking, it's going to be a civil matter. It's only when powerful people whose motivations are in question that suddenly courts get really philosophical about the meaning of intent, right?

0:16:30.2 Rhiannon: Yeah. Yeah. And whether or not you can be liable for it, whether or not that's an actual harm, because you meant it or not.

0:16:38.5 Peter: Right. Courts have no problem figuring out the intent of a criminal defendant in most cases, but if you place the machinery of power between your intent and your actions, the court will suddenly greenlight it.

0:16:52.1 Michael: Right.

0:16:53.4 Rhiannon: Absolutely.

0:16:54.6 Michael: And just to highlight how sort of ridiculous this comparison is, there might not be anybody in the country who leaves a more complete and publicly available record of their thinking than legislators. There are records of all the different drafts of the bill. There are floor statements, there are campaign statements. There are interviews. It's like, you are overwhelmed with evidence of their intent...

0:17:23.0 Rhiannon: Yes. Yes.

0:17:24.2 Michael: As compared to the typical criminal case where you're like, "Man, hopefully we have a witness who can say, he said this, or we have a text." Or some shit like that.

0:17:34.7 Rhiannon: Or just like he lifted his arm and pointed the gun. So we have intent.

0:17:40.2 Peter: That is literally enough for intent.

0:17:41.5 Rhiannon: That shows what he meant to do.

0:17:42.3 Peter: Right.

0:17:42.6 Michael: Right.

0:17:43.2 Peter: So Black also says that even if we did strike down laws based on racist motivation, they could just be passed again with new motivations.

[laughter]

0:17:57.7 Peter: Now, I truly don't understand this argument. I don't understand how a clerk doesn't walk back up to him and be like, "No, you can't put this in the opinion." Yes, some motivations for doing things are constitutional and some are not. Right? This is not a complex concept. It's common throughout the law. The same action can be legal or illegal depending on your reason for doing it. Right?

0:18:22.1 Rhiannon: Absolutely.

0:18:22.2 S42: I run a little convenience store, and I don't want to sell a guy a breakfast sandwich because he's being rude to my other customers. Totally fine. Legal. If I don't want to sell him a breakfast sandwich because he's ethnically Albanian, that's illegal.

0:18:37.5 Rhiannon: Right. Yeah.

0:18:37.6 Peter: Same action, same thing, one's legal, one's not.

0:18:41.0 Rhiannon: Very simple.

0:18:42.7 Peter: Very simple stuff. What the court's doing is being like, "Well, we can't require them to keep pools open. That's not mandated by the Constitution." Right? And like, no, it's not, but sometimes your intention can make an otherwise legal action illegal.

0:18:58.5 Michael: Right.

0:19:00.0 Rhiannon: Exactly.

0:19:00.4 Peter: Just very obvious stuff. Not to mention, they're basically being like, "Well, what if the city tricks us later into thinking that they have a good motivation?" It's like, you're allowed to call that out, too.

0:19:12.2 Rhiannon: Right.

[laughter]

0:19:15.6 Rhiannon: If they're lying to you.

[laughter]

0:19:20.7 Peter: Well, we're gonna let him steal it now 'cause otherwise, he's just gonna steal it later.

0:19:24.8 Rhiannon: Right. It doesn't make sense.

0:19:26.4 Peter: Oh God. This is just some of the most baby brain shit ever. And this is another area where I think it's almost refreshing compared to modern Supreme Court jurisprudence where they've learned to dress all of this up in all of these doctrines and things like that, right?

0:19:43.6 Rhiannon: Yeah. Yep, yep.

0:19:43.7 Peter: And now he's just like, "Well, what if they just come up with another reason?" And it's like, come on, man, what are you... You're a justice of the Supreme Court.

0:19:53.0 Rhiannon: Right.

0:19:54.7 Peter: So anyway, it should be sort of obvious what's going on here. If you are simply ignoring the racist motivation behind this action, you lose all of the context. You're missing the fact that even though on its face it might impact White and Black people equally, it is designed to punish and intimidate Black residents.

0:20:14.1 Rhiannon: Yes.

0:20:14.5 Peter: That is the point of it.

0:20:14.9 Michael: Absolutely.

0:20:15.1 Rhiannon: Period.

0:20:16.3 Peter: It's designed to tell them that we would rather have nothing than share something with you.

0:20:21.2 Rhiannon: And everyone involved in this case fucking knows that.

0:20:25.7 Peter: Right.

0:20:25.7 Michael: Absolutely.

0:20:25.8 Rhiannon: It is obvious to everybody.

0:20:29.7 Peter: Right. Which is why Justice Black is like, "Well, the motivation doesn't matter," because he doesn't want to have to confront it. He doesn't wanna have to confront this complex question of, what do you do when every fucking jurisdiction south of the Mason Dixon and, what? 80% of them up north are just racist as shit?

0:20:47.3 Rhiannon: Right, exactly, exactly.

0:20:48.8 Michael: And so to that point, this case has become sort of a seminal case in Con Law. I learned this as the case about what's called rational basis review, sort of like how rational basis review is taught. Standards of review are sort of like when a professor grades on a curve. And like if you have the option of taking a class with a professor who's known to only give one A the entire semester versus a professor who gives just about everyone As, you wanna be in the class with the guy who gives everyone an A, right?

0:21:24.6 Rhiannon: Yeah, yeah.

0:21:25.4 Michael: And so a lot of these cases, they're like, you're arguing about the standard of review because it's like, "Well, I don't wanna be in the class where everyone fails because then I'm gonna lose my case." And so this is like the rational basis review case. And when you go back and read it and you're like, "This is nonsense. It's fucking stupid." The fact is that the court regularly engages in interrogating the motives of legislators when they choose a higher standard of review. And the rationale for choosing a higher standard of review is that there's something that has raised their suspicion. I think this is pretty fucking suspicious that they got... In order to desegregate the pools and decided instead to close them. That seems suspicious.

0:22:05.9 Rhiannon: Right.

0:22:06.6 Michael: Right? People are like, "I don't know." It's such garbage, but it has been sort of sanitized and abstracted to the point where it's like you read three excerpted paragraphs of it in a casebook in your first year of Con Law, and you're like, "Okay, I get it. It doesn't disproportionately impact. Blacks and whites, they feel it the same, and so therefore you don't interrogate motives and that's rational basis review, the end." And it's like, no, this is fucking racism. This is basic segregation, un-disguised, barely dressed up segregation. That's all this is. And it's like a seminal case. It's good law.

0:22:43.6 Rhiannon: Let's take a break. Okay, we are back.

0:22:48.3 Peter: So there's also an argument here about the 13th Amendment which abolished slavery. Now, in the 1880s, in the civil rights cases, the Supreme Court said, "Yeah, the 13th Amendment abolished slavery," but it also implicitly abolishes what they call the badges and incidents of slavery, basically, these things that flowed directly out of slavery, things like restrictions on freedom of movement, et cetera, all of these sort of legal restrictions on Black citizens that followed from slavery and were being imposed by southern jurisdictions especially after the Civil War. So one of the arguments here was, what was at the time relatively creative but plausible claim that like, look, you can track this back to slavery pretty readily. These sorts of segregated facilities are in fact something that flowed out of the slavery era. There's a 13th Amendment claim here. Now, this is a pretty complex claim for a couple of reasons; one is that of course, once you're past 100 years or whatever, the causal connection becomes harder and harder to argue over time, and also you have the Equal Protection Clause, which should be able to protect you from discrimination.

0:24:08.8 Peter: So there's a question of whether you need the 13th Amendment in a situation like this. But there's a ton of interesting questions about whether the 13th Amendment should apply outside of the era ending in the 1880s.

0:24:24.9 Rhiannon: Right.

0:24:25.2 Peter: Right?

0:24:27.0 Rhiannon: Yeah, yeah.

0:24:27.1 Peter: And the court just shrugs it off and says no. And so we sort of never see the Supreme Court address that question to the degree that it should be, whether or not you think that there's a valid 13th Amendment claim here. The way that the court shrugs it in this is just pretty pathetic, just sort of completely rolling their eyes at it.

0:24:45.6 Rhiannon: Yeah, yeah, they're putting the kabash on 13th Amendment claims at this time at the Supreme Court.

0:24:50.6 Peter: Yeah, yeah.

0:24:52.1 Rhiannon: They're just saying, "That's not gonna fly. We don't have those claims anymore."

0:24:54.4 Peter: Right. They don't even believe that segregation is real right now, let alone it's related to slavery somehow.

0:25:01.8 Rhiannon: Exactly.

0:25:02.8 Michael: Right. So Burger has a concurrence, Warren Burger. We've talked about him as the holy, unimpressive steward of this transition away from protecting rights to rolling back rights that the court went through right around this time. His concurrence, not very persuasive, I didn't think... He basically says, "Look, we can't really just go micromanaging every little municipality out there, right?" Literally, he says, "We would do a great disservice where we'd require that every decision of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidding motives." I don't think that's really what's going on here though.

0:25:46.3 Peter: No, that's absolutely not what's happening. No one's asking you to do that.

0:25:50.5 Rhiannon: Right.

0:25:51.7 Michael: Yeah. We don't wanna know whether or not they are watering the municipal golf course closer to the Black neighborhoods less frequently than they water the ones in the White neighborhoods, right? They were sued to desegregate a decade after Brown v Board, because they still hadn't desegregated any of their public accommodations.

0:26:15.4 Rhiannon: Exactly.

0:26:15.5 Michael: They fought it and eventually started just closing some of those public services in response to that litigation. It's not a microscopic scrutiny. These aren't any random services. This is the civil rights fight of the century happening right there in the open. Who are you fucking kidding?

0:26:37.7 Rhiannon: Exactly.

0:26:38.6 Michael: Garbage. It's absolute garbage.

0:26:41.0 Rhiannon: Yeah, yeah. Blackmun also follows this up with a fucking weird concurrence too. Blackmun later in his career, really good on some stuff.

0:26:49.5 Michael: Sucked early on.

0:26:51.0 Peter: Yeah.

0:26:53.3 Rhiannon: Yeah, this is an example of...

0:26:53.4 Peter: Pre-lobotomy.

[laughter]

0:26:54.5 Rhiannon: Earlier in his time on the Supreme Court, doing a very weird both sides thing, concurring in the judgment. He's in the majority here.

0:27:03.8 Peter: Deciding vote.

0:27:04.8 Rhiannon: Yes, right, exactly. This decision is 5-4, Blackmun, the fifth here. And he just writes a few paragraphs to be like, "Both sides have some points, but here's what convinced me," and he says that he is convinced that Jackson, Mississippi officials are not operating with racial animus in the pool closure decision because they did desegregate the rest of the public parks. And it's like...

0:27:32.2 Michael: After being ordered by the courts.

0:27:34.1 Peter: Right.

0:27:34.7 Rhiannon: Right, after being ordered by the courts. And then they shut down part of the public park so that they wouldn't have [0:27:42.7] ____. So stupid! Sorry, Rachel, on the audio.

[laughter]

0:27:51.1 Peter: It's basically like, look, pools, who cares?

0:27:53.8 Rhiannon: Right, yes. [laughter]

0:27:55.5 Peter: That's literally part of his opinion where he's sort of like, "Pools aren't that important. Maybe if pools are more important... " It's like, yeah, look, you can do racism on the little things like pools, maybe a zoo, if you wanna try segregating a zoo, maybe we'll let you.

0:28:12.2 Rhiannon: It's bizarre. It's so stupid and bizarre.

0:28:15.8 Michael: Again, this litigation started a decade after Brown v Board. A decade after Brown v Board, they still hadn't desegregated any of their public parks, and then fought it for nearly a decade onward. Right?

0:28:33.3 Rhiannon: Yes, yes.

0:28:34.5 Michael: And you're saying, "Yeah, but they're not operating out of animus." We forced them to desegregate some of their stuff and they did it through gnashing of teeth and rending of garments, they eventually desegregated their zoo. So I just have to assume all that other racial animus that is clearly evident in their last 15-20 years of behavior has just evaporated.

0:28:55.8 Rhiannon: Right.

0:28:57.2 Michael: It's fucking moronic. It's so stupid. God, it makes me so angry. This case made me so angry. It made me so angry in law school.

0:29:06.8 Rhiannon: Yeah.

0:29:07.9 Michael: I remember yelling about this in class too.

0:29:11.5 Peter: Alright. So Justice Douglas has the first dissent and it's a pretty cool one. He addresses a lot of the concerns raised by the majority. The majority in the concurrences are constantly pointing out like there's nothing in the Constitution saying that cities have to provide public pools and he's like, "Yeah, I know. That's not the point."

[laughter]

0:29:34.1 Michael: "What we're doing here... "

0:29:34.2 Peter: The point is that the decision is motivated by racial animus and fostering racial discrimination. He puts this in terms of the 9th Amendment, which of course says the Constitution is not an exhaustive list of the people's rights.

0:29:50.7 Rhiannon: Right, yeah.

0:29:50.8 Peter: A cool little relic of the era when people were still reading the 9th Amendment in Supreme Court decisions.

0:29:58.4 Rhiannon: Right, yeah. Thought that it might mean something.

0:30:00.0 Michael: Yeah.

0:30:02.2 Peter: And he quotes the dissenters in the Court of Appeals case below. They said, "The closing of the city's pools has done more than deprive a few thousand Black residents of the pleasures of swimming. It has taught Jackson's Black residents a lesson. In Jackson, the price of protest is high. Black residents there now know that they risk losing even segregated public facilities if they dare protest segregation. Black residents will now think twice before protesting segregated public parks, segregated public libraries or other segregated facilities. They must first decide whether they wish to risk living without the facility altogether and at the same time engendering further animosity from a White community which has lost its public facilities also through the Black residents' attempt to desegregate these facilities."

0:30:53.1 Peter: So making a pretty concise statement there about what is actually happening, just adding the necessary and obvious context like, yes, this is designed to punish black residents for requesting desegregated facilities to chill their desire to do so in the future, and it's designed to foster animosity between Black and White residents. The irony being that it was the Jackson officials being like, "Well, this might cause too much tension between Black and White residents," when in fact their whole project is to create tension between Black and White residents.

0:31:32.6 Michael: Absolutely.

0:31:33.9 Rhiannon: Exactly.

0:31:35.1 Peter: And yeah, he closes the dissent by stating what I think is the obvious. Cities are free to close down public facilities like pools, but they can't close it down if their goal is solely to avoid desegregating.

0:31:45.8 Michael: Right, right. [laughter] It really isn't that hard. Like...

0:31:52.0 Rhiannon: No, not at all.

0:31:53.0 Peter: No, no.

0:31:55.1 Michael: So Justice White also has a dissent, very different from Douglas, also very good, extremely detailed history, I think, starting with Brown v Board and discussing... It's just sort of going through how that wasn't the end of Jim Crow. That wasn't the end of segregation. That was the start of a long and arduous process by which these public officials, including those in Jackson, had to be harassed by the courts and by the federal government and by their own people over the course of 20 years to desegregate. He does it through the lens of court cases 'cause that's what they do, but you could look at it through historical lenses as well. It's an incomplete history in that sense, but it's an important one. It's an important antidote, I think, because you read the majority and some ways it feels like it could have been written like today, like the tenure of sort of like, segregation, the racial troubles, that's behind us. It's like, "What are you talking about? This case is ongoing. You're hearing a case about it."

[laughter]

0:33:04.8 Rhiannon: Right.

0:33:07.7 Michael: They're talking about this shit like it's the distant past. It's like the same fucking mayor. [laughter] Right?

0:33:13.7 Rhiannon: Right, right.

0:33:14.4 Peter: Right.

0:33:14.9 Michael: It's absolutely nuts. And so to have someone be like, "Look, this has been going on pretty much since day one, since Brown v Board, we have met nothing but resistance in our efforts to desegregate American society, especially in the south but everywhere." That's true in Jackson. It was true of the public school systems. It was true of the public parks and it's true of the public pools. And here is 20 years of litigation to prove the point. So what are you talking about? To the majority, what world are you living in?

0:33:54.2 Rhiannon: Right.

0:33:55.5 Peter: George Wallace is literally the Governor of Alabama, like the state next door, while this is going down, and they're doing this weird technical analysis of racism that feels like very modern, conservative rhetorical tactics, very like, "Well, look, you're saying you can't close a pool?" This sort of deflections from the context, very, yeah, Tucker Carlson sort of stuff.

0:34:19.2 Michael: There's a quote I wanted to read from this, I thought it was pretty good from White. He's talking about, as Peter mentioned, this is all based on literally just speculation from city officials being like, "Oh, it'd be really expensive and really dangerous to desegregate the pools," and nothing else. Just like baseless statements. And so he says, Justice White says, "In my view, the 14th Amendment does not permit any official act, whether in the form of open refusal to desegregate facilities that continue to operate, decisions to delay complete desegregation, or closure of facilities to be predicated on so weak a read. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held. Surely the promise of the 14th Amendment demands more than nihilistic surrender."

0:35:20.3 Rhiannon: Yeah.

0:35:21.4 Michael: And I think that's right. I really like that last line because nihilistic surrender has been what we've gotten for the last 50 years.

0:35:30.8 Rhiannon: Exactly, yeah.

0:35:31.7 Peter: Yeah, a good point that I think is obvious to a degree but articulated very well, that like, if Jackson, Mississippi can say "No, we're not going to provide an integrated facility because our residents are too racist," that is essentially giving veto power to racists within these jurisdictions.

0:35:51.5 Michael: That's right.

0:35:52.1 Rhiannon: Exactly.

0:35:52.6 Peter: Over any integration efforts.

0:35:54.5 Michael: Yes.

0:35:54.7 Rhiannon: Yeah, I think that's exactly right. Justice Marshall, Thurgood Marshall also has a dissent here, really short but powerful, I think, especially from a Black man who grew up in a deeply segregated country and was nearly lynched for his legal work multiple times on desegregation efforts and racial equality, and argued the case in front of the Supreme Court that ruled that segregation was in fact unconstitutional. So he says, "The argument that the closure of the pools applies equally to all races, that has shit all to do with the 14th Amendment," right? "The Equal Protection Clause," he says, "protects individual rights. These rights are personal to the individual." He says, "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. When the officials of Jackson, Mississippi denied a single Negro child the opportunity to go swimming simply because he is a Negro, rights guaranteed to that child by the 14th Amendment were lost. The fact that the color of his skin is used to prevent others from swimming in public pools is irrelevant."

0:37:02.9 Rhiannon: He also says that Brown v Board has already been decided and it is equally applicable across public schools, across public places, universities, primary school, recreational facilities, everywhere, regardless of whatever stupid shit a municipality or a state say about the economic burden, right? So there's no logical reason why we are doing a carve out here for public pools in the public parks context. It just doesn't make any sense.

0:37:30.1 Michael: Right. None.

0:37:33.1 Rhiannon: So I think that brings us to probably a little bit of discussion of what some scholars have called leveling down as a discrimination solution, right? So it's this idea that public officials across the country, in many ways, have responded to efforts to desegregate, calls to desegregate, orders to desegregate, or really just the expectation that you are giving equal protection to your residents and citizens, that public officials across the country have responded to that over the decades, by sort of leveling down the services that they're providing to all people. In this case, it is shutting down a public service because they don't want to give it equally to everybody. Deborah Brake is a law professor; she wrote an article about this, and I really like the title, "When Equality Leaves Everyone Worse Off." I think it's a good description of what this kind of leveling down concept is.

0:38:34.2 Michael: Mm-hmm.

0:38:35.2 Rhiannon: First off, I think we need to call leveling down what it is, which is what Justice Douglas was talking about in his dissent. Leveling down city services, state services, is retaliatory.

0:38:49.0 Michael: Mm-hmm.

0:38:49.5 Rhiannon: It is how bad teachers and parents punish children, it is how stupid government officials punish people who speak up and demand things like equality from their government. In this case, closing down the pools altogether is targeted retaliation at racial justice activists and Black residents of Jackson, Mississippi. City officials are saying, if you fight for this stuff, if you speak up about this, if you bother us about this, well, we won't give it at all. And on top of that, you will deal with other people, with White people, who will be angry at you because they lost this city service too, right? So leveling down I think is absolutely a tool that city officials use to buck their responsibilities to provide sort of equal services, equal protection of the law, but it is also a tool used to silence people. It is a tool used to punish people for asking and expecting that their government do what the government is supposed to do. I think also leveling down also shows a really impoverished way the Supreme Court, but really our entire legal system, looks at equality law in general, and what equality law is supposed to protect, right?

0:40:01.1 Rhiannon: Like supposedly neutral, "equal" treatment, like in this case, meaning the public pools are shut down for both Black and White people, right? That supposedly being all that equality law requires, that's not the only norm here. We don't have to accept that, right?

0:40:22.1 Michael: Right.

0:40:22.3 Rhiannon: You can also think about equality law as protecting our right to be treated as an equal, not to just receive equal shitty treatment, right?

0:40:33.0 Michael: Right, right.

0:40:34.1 Rhiannon: When government officials level down services, level down their responsibilities to us, that's what they are doing. They are accepting the very lowest, most impoverished, most reductive and shittiest version of what equality could mean.

0:40:54.1 Peter: You remember that scene in The Simpsons when Bart is like, "I'm gonna swing my arms like this, and if I happen to hit you, that's gonna be your fault."

0:41:04.3 Rhiannon: Exactly.

0:41:04.4 Peter: And Lisa's like, "I'm gonna kick the air, and if I happen to hit you that'll be your fault."

0:41:06.7 Rhiannon: Right, right.

0:41:08.9 Peter: That's what this is, right? Swinging your arms in the air walking towards a minority population, and when they get hit being like, "What? It's not discrimination, I was just swinging my arms wildly through the air."

0:41:21.5 Rhiannon: Swinging my arms equally. Yep.

0:41:23.0 Michael: Yeah. I think this case is such a good sort of synecdoche for largely how racism ends up hurting White people, too, right? Like white supremacy... What's the phrase? It's like racism is a poison first ingested by the racists, or something like that. Yeah, it's like White kids don't have public pools now either. This is... When you let cops pull over whoever on pre-textual bullshit and let them abuse people's rights, it turns out a lot of poor White people end up having their rights violated too.

0:41:56.0 Rhiannon: Right, right.

0:41:56.4 Michael: This happens throughout our law, where this toleration of leveling down means that everyone suffers. Everyone is worse off. We are worse off...

0:42:10.0 Rhiannon: Exactly.

0:42:10.9 Michael: As a society.

0:42:11.7 Rhiannon: Right. Exactly. But the blame gets placed on the minority population, right?

0:42:14.4 Michael: That's right.

0:42:14.9 Rhiannon: On the people of color, on... Yeah.

0:42:15.9 Michael: It's also important to discuss how this was a piece of rebuilding segregation. Like at the same time you are reducing funding to the public commons that are now mandated by law to be integrated, you are funding big highways out to new suburbs, newly zoned residential suburbs, new infill, land that used to be swamps, that you've now, like all of a sudden, we've decided we're gonna fill that in, we're gonna make it single-family homes, and we're gonna build highways out to it, and we're gonna put in a bunch of subsidies. And lo and behold, all of a sudden you have all-White neighborhoods. Oh, and the public schools there will be funded by property taxes. And guess what, you have White schools well-funded, White families living in model homes, each with their own private pool or in little gated communities with their shared all-White pools once again, while the greater public has been denied a fair and equal society. This was one piece of that larger project. And I don't know that it was the Supreme Court's job to say, "You can't build the suburbs," or whatever, but I do know that they could have done more to make this harder, and they could have made it harder to punish the people who decided to live in the integrated urban core.

0:43:46.8 Michael: It didn't have to be this easy. You didn't have to fucking grease the wheels here and make it as easy as possible to just destroy all of our public goods while a bunch of segregationists fled to the suburbs and the exurbs and recreated a fully segregated society. This was an affirmative choice by the court to aid in the recreation of segregation.

0:44:13.1 Rhiannon: Totally.

0:44:14.9 Michael: And this case is an archetypal example of it.

0:44:21.3 Rhiannon: Yeah, yeah.

0:44:21.5 Peter: Now, circling back to the law here. The question of whether we should be analyzing the motivations of lawmakers is still relatively controversial in legal academic circles. Most prominently, it came to the Supreme Court's attention in Trump v. Hawaii, the case about Trump's Muslim ban in 2018. We've covered that case, but what happened was Trump said, "Hey, I am going to ban Muslims from entering the country." And then he didn't quite do that.

0:44:51.1 Michael: Well, he tried at first.

0:44:54.1 Peter: Well, sure, but he never did that exactly. Instead, he attempted to implement a set of regulations banning people from certain majority Muslim countries. That way he could argue that he wasn't actually banning Muslims, which would of course be flatly unconstitutional, but what people said was, "Hey, we know that his motivation was banning Muslims. He said it all the time. It was straight up on his website. So even if that's not exactly what the policy says, it's unconstitutional on that basis." But the court said it was okay, and argued, like the Palmer court, that the motivations of lawmakers should be ignored. Now, what's interesting about that case is not just that it has parallels with Palmer, the Trump Department of Justice cited Palmer v. Thomson in their briefs in order to make the argument, just relying on a case upholding segregationist practices in order to justify modern discrimination. So 50-ish years later, the same exact bullshit being pulled. I fucking hate these arguments, because with Trump it was almost too ridiculous. [chuckle]

0:46:18.1 Peter: Like, he was just like, I wanna ban Muslims. And everyone was like, "No, you can't say that." And he's like, "What about some Muslims?" And they were like, "Alright."

0:46:26.2 Rhiannon: That's cool.

[laughter]

0:46:26.3 Peter: Like, what the fuck?

0:46:27.2 Michael: Yeah.

0:46:27.3 Rhiannon: Right, right.

0:46:27.6 Peter: I remember having discussions with other lawyers about this, who thought that this should be allowed in some form, and in my mind it doesn't matter how narrow you get, you can get down to one Muslim guy and be like, "Alright, we're just banning him and I'm gonna say it's 'cause I don't like him."

0:46:43.3 Rhiannon: Right.

0:46:43.5 Peter: And that's not unconstitutional. That's not an unconstitutional reason to ban someone. It doesn't matter. Everyone knows your original reason was that you hated Muslims, shouldn't fly. But yeah, I don't know, I guess the lesson of Trump v. Hawaii is that this sort of like fake humoring of the excuses for racism, the justifications for racism, continues full throttle to this day.

0:47:10.9 Rhiannon: Yes. Exactly.

0:47:11.0 Michael: And you know, I actually tweeted about this case not too long ago, and my replies were filled with a lot of examples of this stuff. Both then and now.

0:47:21.2 Rhiannon: Yeah, this leveling down idea, where municipal or state officials just decide like, "Fuck it, we're not gonna do this at all," if they aren't allowed to do it in their discriminatory, fucking evil little monster way.

0:47:34.8 Michael: Yeah. So some of them were like public schools closed entirely in counties in the South in Virginia for years, and of course when they finally came back, well, a lot of Black kids didn't return to the schools, right? They had lost several years of education while White kids were off at private schools. And so you just had entire lost generations. Heather McGee wrote a book where she called this stuff "drained pool politics" because it was so common. One town in South Carolina didn't close their pools but started hosting and having sea lions live in the public pools, making them just completely inaccessible to everyone.

0:48:17.0 Peter: That's gotta be more expensive than integrating.

[laughter]

0:48:18.7 Rhiannon: Right? Yeah, yeah.

0:48:19.8 Michael: Right. Right.

0:48:21.8 Peter: How do you even get that idea?

0:48:24.1 Michael: I don't know.

0:48:25.4 Rhiannon: Like, we're making it a zoo. I don't understand.

0:48:26.0 Michael: Yeah. And so I had tweeted about it because I think the modern example that we're seeing a lot of now is with libraries, and with people who are angry about the idea that they have to share the library with gay people and Black people. And they don't wanna see Black histories in the library, they don't wanna see books that center gay characters and explore gender identity. And so a town in Michigan defunded their libraries entirely over LGBTQ stuff. Texas, there was a town in Texas that was talking about doing it, but there was so much backlash they seemed to have, at least for the time being, decided they weren't going to completely defund their public library system. Missouri, the entire state seems to be on the cusp of defunding all their public libraries. This stuff is still with us. This tactic, this animus, the stuff that Burger and Blackmun and all of them in the majority here thought was in their rearview in 1971, is alive and well right now.

0:49:28.8 Rhiannon: Yes.

0:49:30.2 Michael: And the challenge is still on us in building a better and more inclusive society.

0:49:39.1 Rhiannon: Exactly.

0:49:40.0 Peter: Before we wrap up, I think it's worth pointing out that this is a classic example of the ways in which legal analysis fails to deal with context, and as a result becomes blind to some obvious realities. Everyone knows what happened here, right? Everyone knows the motivations of the Jackson city officials for shutting down the pools. Everyone knows that their goal was to express their disdain for integration, to cast doubt over future attempts to integrate. The majority does this wink-wink bullshit, where they say like, "Oh, what? You can't close down a pool now?" Like you're a fucking idiot who can't put together a couple of pieces of context. And I think legal analysis is particularly susceptible to this sort of technical context-free reasoning, because lawyers want to imagine that they are being objective, and so they search for simple, easy-to-apply rules that they can follow. But there are no simple rules that can parse these complex circumstances effectively. So what they end up doing instead is shedding all of the context until they've simplified the situation down to a caricature. So what starts as a question of whether a city can undermine integration efforts by strategically closing down public facilities, gets reduced to, are cities allowed to close pools? And all of the complexity and nuance is lost. And I think that's something that only a lawyer can do as effectively as you see the majority do it here.

0:51:21.7 Rhiannon: Yes. Yes. Well put. It's just fucking lawyer brain.

0:51:24.7 Michael: If you have one hour, look forward to talking about this case for five minutes before moving on to intermediate scrutiny.

[laughter]

0:51:31.7 Peter: Right.

[music]

0:51:35.8 Peter: Next week, we are talking with Steve Vladeck. Professor Steve Vladeck's coming back on the show to talk about his new book about the shadow docket. The name... Is it just Shadow Docket or something? What is it?

0:51:49.6 Michael: Aptly titled, The Shadow Docket.

0:51:51.3 Peter: When something has a cool name, you don't need to fuck around looking for titles.

0:51:54.2 Rhiannon: Yeah, that's right. That's right.

0:51:55.6 Peter: Follow us on Twitter @fivefourpod. Subscribe to our Patreon at patreon.com/fivefourpod, all spelled out, for premium and ad-free episodes, access to bonus content, our Slack, all sorts of shit. We'll see you next week.

0:52:13.5 Rhiannon: Bye.

0:52:13.8 Michael: Bye.

0:52:15.4 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our Production Manager is Percia Verlin, and our researcher is Jonathan Debrouwer. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks, @ChipsNY. And our theme song is by Spatial Relations.

0:52:46.7 Peter: Justice Hugo Black writes the majority opinion... I'm recording, right? Yeah. Thank God. Alright.

[laughter]