The Story of Jean v. Nelson

Episode 2

In Episode 2, host Raymond Audain revisits Jean and Justice Marshall’s dissent with some of the people closest to the litigation. The episode features Ira Kurzban, Irwin Stotzky, Muzaffar Chishti, Richard Revesz, and Steven Forester.

Transcript

Raymond Audain: Even for an administration characterized by a series of appalling actions, the reports of January 12, 2018, stand out.

Here & Now clip: President Trump reportedly said, “Why are we having all these people from shithole countries come here?” That was after lawmakers told him a bi-partisan immigration deal would include people from Haiti and some African countries. He also said the U.S. should admit more people from Norway, which is a majority white country.

Raymond Audain: The Trump administration has long made clear its preference for white immigrants and its hostility towards immigrants of color, especially those from Haiti. Unfortunately, the administration's disaffection for Haiti is nothing new. The relationship of the United States to Haiti has been punctuated by noxious racism for centuries. Professor Laurent Dubois describes it in his book Haiti: The Aftershocks of History. By the end of the 1700s, French Saint-Domingue, as Haiti was then known, was the world's largest producer of sugar. It grew half of the world's coffee, and it became the most profitable colony on earth. It was also a brutal slave state where between five and ten percent of the enslaved population died from overwork and disease every year. Many of the enslaved people who arrived in the colony in the late 1700s were African soldiers captured in battle. As Professor Dubois explains, Saint-Domingue’s slavers were bringing literally thousands of soldiers to their shores. And those soldiers eventually did as all soldiers do: they asserted themselves over their circumstances. They helped to advance the work of Haitian-born enslaved persons who had been organizing and resisting for decades. In August 1791, enslaved persons on a sugar plantation ignited the largest slave revolt in history. Within two years, every enslaved person in the colony was free. Professor Dubois explained that the Haitian revolution was an act of profound and irreversible transformation. It deeply unsettled the United States. It took more than seven decades for the U.S. to recognize Haiti's independence, and America's hostility persisted for a long time after that. The federal government has a well-documented history of discrimination against Haitian immigrants, and that discrimination has led to several lawsuits. Jean v. Nelson is arguably the most consequential of these cases. My name is Raymond Audain, I'm an attorney at the Legal Defense Fund, and this is episode two of On the Other Side of the Water: Immigration and the Promise of Racial Justice.

On the last episode, author Edwidge Danticat reflected on her experiences in Haiti, including life under the Duvalier regime. During the late 1970s and early 1980s, thousands of Haitians sought political asylum in the U.S., in an effort to escape that dictatorship. In this episode, we'll take a close look at Jean v. Nelson, the case that was brought by a group of those asylum seekers who alleged that the immigration policies targeting them were racially discriminatory. The case went all the way to the Supreme Court, and, in 1985, the Court issued a decision that's remembered primarily for Justice Thurgood Marshall's forceful dissent. It marks a watershed in the struggle for racial justice and continues to reverberate today. Jean v. Nelson addressed a simple but fundamental question—Is the federal government at liberty to discriminate against thousands of Black men, women, and children just because they happen to be immigrants? For Ira Kurzban and Irwin Stotzky, two of the attorneys who led the case, and for the communities that mobilized around the issue, the answer had to be, no. Irwin Stotzky is now a professor at the University of Miami Law School, and Ira Kurzban may be the most famous and controversial immigration lawyer in America. But back then they were just a couple of tyros. Attorney Ira Kurzban.

Ira Kurzban: And in the course of being in law school in my last year, I met Leonard Boudin, who you may know was the general counsel for an organization called the National Emergency Civil Liberties Committee, which has a very interesting history in itself. It was eventually folded into the Center for Constitutional Rights and was started in the 1950s at the time that the ACLU was turning-in its own members to the McCarthy committee and the House Un-American Activities Committee during the whole McCarthy era, and one of the things they did involved Haitian refugees in south Florida—that's how I’m making the connection here. So, Leonard had asked me, would I be willing to go to south Florida and represent the National Emergency Civil Liberties Committee in their work.

Raymond Audain: Irwin Stotzky was also working on these issues in south Florida at the time.

Irwin Stotzky: So, when I came back down to Miami, I was only going to stay here for a year. And, all of a sudden, I got involved working with Haitian refugees. In fact, the first couple of years I was here, I used to go down to the bay with students and the beach when Haitians were being washed up, many of whom died from the 800 hundred mile trip they took—I don't know if you've ever seen videos of it, but they were packed like sardines on these really inferior ships. And a lot of them drowned—I mean, it was really tragic. And they risked their lives and children's lives to get away from dictatorships, particularly at that time the Duvalier dictatorship. It was the most repressive regime in the Western hemisphere. And imprisonment for those who were returned meant death sentence. Three quarters—75 percent of people incarcerated in Haiti died within a year, either from beatings or from diseases. Moreover, one of the reasons why Duvalier was torturing these people, besides the fact he liked to torture people, was because he thought it embarrassed his country to believe that everybody wanted to leave the country because it was such a horrible dictatorship.

Raymond Audain: Steve Forester was also a young attorney in south Florida.

Steve Forester: Well, the background is important. Papa Doc died in ‘71 and Baby Doc took over—Duvalier. And in the 70s, you know, the professional class had largely left under the murderous repression of Papa Doc—he was a brutal dictator who murdered people—and the professional class—engineers, educated people—they had had already, under Papa Doc, fled to places like New York and Montreal and other places. Papa Doc had created the Tonton Macoutes, and it's important to have some sense of them. The military in Haiti had always been the king makers. Papa Doc, when he came into power, created this separate paramilitary called the Tonton Macoutes because he wanted a force that would be directly loyal to him to offset the power of the military and enable him not to be overthrown in a coup as had happened to prior dictators, uh, prior people, uh, prior people in Haiti.

And, so, the Macoutes existed for one purpose, and that was to be loyal directly to Duvalier. In exchange for their loyalty to him, he allowed them to do whatever they wanted. And the Macoutes were able to rape with impunity. If you were a small vendor selling goods on the street in your village or whatever, a Macoute would extort from you, would “buy” from you and say, “I’ll pay you later,” never pay, and if you raised an objection later on and say, “You know, were you going to pay for this?”, you'd be beaten or worse. They had carte blanche to do whatever they wanted. Now, when Baby Doc took over, the Macoutes were still around, and he kept them around. And so, boat persons started to flee, and by the late 70s—'77, let's say, I don't have the exact numbers—but when it got to be the point, there were maybe 3000 boat persons, Haitian boat persons, who had risked and often many of them lost their lives taking these flimsy boats from Haiti, and when they arrived in south Florida in sufficient numbers, the Justice Department got concerned.

Raymond Audain: The unprecedented influx of Haitian asylum seekers caused the government to scramble. It abruptly changed longstanding immigration policy in order to make it much more difficult for the asylum seekers to enter the country. Before then, it had been the government’s practice since 1954 to parole immigrants freely into the U.S. while their asylum claims were being reviewed.

Ira Kurzban: And there's a whole history, because prior to 1980, even though there was a statute that says, when people come in, they shall be detained, that statute was never enforced in that way. In other words, the only people who were detained were people who they would consider serious criminals, people who are national security threats, and that would be a very, very small number of people. Uh, generally people will be released and paroled under Section 212(d)(5) of the Immigration Act, and paroled until they had a removal hearing or what was then called an exclusion hearing. And then they would be excluded, or they would be granted some benefits. 1980 changed all that. They began the detention policy, which was the beginnings of Jean v. Nelson. It started when Reagan came into office, and Reagan said, through then Attorney General William French Smith, that they were going to interdict people in the water and turn them back, that they were going to incarcerate people, and they were going to expedite the removal of people coming to the United States. Now, those were all facially neutral criteria, as horrible as they were, but they were facially neutral. Ultimately, they only applied it to Haitians. That discrimination was very blatant and very severe.

Raymond Audain: Like many of the lawyers who got caught up in the tumult of the period, they worked to bring cases that responded directly to the community's immediate needs.

Ira Kurzban: Our work was generated out of the needs of people in the community. And that was true of Jean v. Nelson. And that was kind of the initiation of that lawsuit. There's kind of two different ways of viewing how people, I think, do civil rights cases. One may be kind of the top down and selecting individual cases. But the other path of really doing civil rights cases, in this case immigration rights case, I think is generated from the, you know, from the bottom up, that is, from the needs directly and immediately of the people you're representing, and I think we found ourselves in that situation with respect to the Haitian Refugee Center. But the case arose because of Haitians, as they were coming in, and they had family members who were in south Florida, who would go to the Haitian Refugee Center and say, “my family member’s boat came into south Florida and they were incarcerated.” And it turned out that there were over 2000 Haitians who were then incarcerated in various detention centers. First, it was at the Krome detention center, which wasn't even a detention center then. Krome was a Nike missile base aimed at Cuba, that they converted into an immigration detention center.

Raymond Audain: Irwin Stotzky remembers it this way.

Irwin Stotzky: These people risked their lives—their children's lives—and spent sometimes up to a month in these rickety boats, many of whom drowned to get here seeking freedom, but instead what they found was a government that treated them less like people and more like animals, detain them, created this detention facility called Krome, then separated them by sex, and incarcerated the children, the older folks, and all those with medical problems.

Raymond Audain: Steve Forester recalls his early experiences working with the asylum seekers.

Steve Forester: When I got a call around 9 in the morning, one morning, from Ira Kurzban, and he said, “There's something going on with the immigration courtrooms.” And they were in downtown Miami. Haitians were already being detained, but they hadn't built the courtrooms at Krome yet. They brought Haitians in large numbers down to the immigration courtrooms and they held what were called, as I recall, mass advisory hearings. Instead of individual hearings, they got about 35 people—Haitians—in a courtroom, and they tried to keep attorneys away from them. I mean, I was the one—Ira sent me down there, and when I got down there, I found that this was going on. They didn't want me to speak to any of the Haitians, and, in fact, they physically barred me from the courtrooms—they locked the doors. They at one point in order to avoid my being able to inform them of their rights to be represented, they actually led the Haitians up the back stairwells in order to avoid me. At one point, I think I was actually manhandled, and the courtroom doors were locked. So, they had these mass advisory hearings, or one after the other, they would order people out. Now, later, they built the courtrooms at Krome, so that, instead of bringing people down to the downtown Miami courtrooms, now they had three courtrooms at the Krome detention facility, and they had simultaneous hearings in all three courtrooms for the Haitians. And I was the only attorney out there representing them. I mean, the Haitians were poor, they didn't have funds for attorneys. In fact, they were in so-called exclusion proceedings, and in fact it was extremely difficult to have any contact with them whatsoever. And so, in the Fall of ‘81, they held hearings in the three courtrooms at Krome simultaneously. The judges, as I recall, were Judge Foster, Judge Scroope, and Judge Nail. And because I couldn't be physically present in three courtrooms simultaneously, I got up early in the morning and prepared the various legal motions that we put in, in the individual cases. One was for a continuance of the hearing, because I couldn't be simultaneously in one courtroom and in two others at the same time. Another was for simultaneous translation of the proceedings. Another was for the introduction of background evidence on the conditions in Haiti from which people are fleeing. So, I would get in these legal documents and try to make appearances at, you know, running around literally between the three courtrooms to try to get there before an order was issued in the case. These were asylum hearings. At one point, I remember interacting with Judge Scroope outside the Clerk of Courts Office at Krome, and he, you know, I said, I must have said something like, you know, “This is outrageous,” how it's…you know, it's wrong what's going on. I'm sure I was more, slightly more diplomatic in my approach, but I remember him saying something like, “The orders for this are coming from the highest levels from the Justice Department.”

Raymond Audain: Although Krome was the most notorious detention center, it wasn't the only one.

Steve Forester: Haitians were detained in nine major facilities all over the United States, as I recall it, including Krome. And what the facilities had in common is that they were remote from any available legal counsel. Places like Big Spring, Texas; Morgantown, West Virginia; Ray Brook, New York; and Ponce in Puerto Rico. And, I forget the exact numbers, but I think it was up to about 2000 Haitians who were detained, and many of them of course lost hope. I mean, they were detained at Krome and at these other facilities, almost always, if not always remote from any Haitian community that could provide any kind of comfort, or solace, or assistance, and they had no sense of what was going on on the outside to try to help them. All they knew was that they were being indefinitely detained. So, as month after month after month went by, some people would lose hope and ask to go back. So one thing I did was to try to let people know—and I did this a couple of times in person at Krome or on the phone somehow—let people know the court effort that was going on on the outside to try to assist them. And, so, most of them did hold-on.

Raymond Audain: The majority of detentions lasted more than a year. In 1982, the New York Times reported on 68 Haitian men and women who were detained for seven months in a former Navy brig in Brooklyn. They had rarely been outdoors. The court found that the government was playing a human shell game, and the detention policy was widely described as a moral disgrace. For everyone impacted, it was clear that race—and racism—were at the heart of the matter. Muzaffar Chishti, the Director of the Migration Policy Institute at NYU, was a labor lawyer at the time.

Muzaffar Chishti: Well, I remember that those of us who entered the Haitian issue in that time were almost all focused on one line in a district court in Florida decision by Judge James Lawrence King—I think was his full name. And all of us had his full name always in our memory, and also his next bio line, that he was a Nixon appointed Republican judge. And he got one of the first cases of Haitians in Miami who were being denied asylum. And a bunch of us had not really paid attention to the Haitian issue, but all of us instantly paid attention to the one line in a case—I think it was called Haitian Refugee Center v. Civiletti, in 1980, I think—where the sentence was, “This case involves thousands of Black Haitian” refugees or nationals—I forget that word—"the brutality of their government, and the prejudice of ours.” For those lawyers who were entering the immigration debate at that time, this was like, the foundational sentence for the involvement of all of us, that here was our government mistreating a group of refugees, not only in violation of our own laws, but it seemed clear to many of us at that time that there was a strong racial bias in the enforcement of our immigration laws and the treatment of Haitians. I think it was also clearly not lost on anyone that all the Haitians were Black.

Raymond Audain: Irwin Stotzky saw things the same way.

Irwin Stotzky: It was clearly on the basis of their race. They didn't want any Haitians, uh, Black people, coming to United States. It was absolutely their intent to keep any of these Black people out of the United States, for sure. And that went all the way up to the highest reaches of our government. So, we met with the Haitian community at the Haitian Refugee Center with community advocates. We had a long talk with them about this, and they were furious that they were being treated, not like human beings, but just as numbers and figures, and they were being discriminated against. So, this was not just a question of arid legal logic and equal protection, it was a question of defining them as human beings.

Raymond Audain: Although the racial dimensions of the detention policy were clear, race discrimination claims against the federal government were rare at the time.

Ira Kurzban: There were very few cases that we could ever find—and most of them were in the employment discrimination area—where the federal government, as opposed to the states, were accused of race discrimination. Most of our cases that we study in law schools and cases that are well known are cases of discrimination involving states or school boards or different entities—public entities. But it was almost unheard of that you would accuse the federal government of discrimination based on race.

Raymond Audain: By necessity, their approach to the case was cutting edge, and it turned out to be groundbreaking.

Ira Kurzban: When we began Jean v. Nelson, I had the benefit of two very brilliant law professors at the University of Miami, Bruce Winick and Irwin Stotzky. And they familiarized me with the APA, which really, at that time, was not—the APA is the Administrative Procedures Act, which is an act that allows you to sue administrative agencies. Although it was used in other contexts, it was rarely used in the immigration context. So, I think one of the most innovative things that we did in Jean v. Nelson, ironically, was not necessarily the Equal Protection claim, but the claim that the government had failed, in changing their policy, to publish this in the Federal Register. In other words, if the government is going to change its policy, it's supposed to publish it and give the public an opportunity to comment. And that was on the Administrative Procedures Act—what we call, notice and comment claim. So that was part of the lawsuit. The discrimination claim to me was obvious and important for many, many reasons.

Raymond Audain: But that didn't mean it would be easy. As anyone who's brought an Equal Protection claim can tell you, they're exceedingly difficult to prove. In fact, they lost the race claim in the district court, but an 11th Circuit panel overruled that decision.

Ira Kurzban: Well, the panel really delves into the evidence, and, as they said, the evidence was overwhelming of discrimination. In fact, the case that they cited, Gomillion v. Lightfoot, --which was one of the classic Supreme Court cases on gerrymandering against people in the Black community to deprive them of the right to vote—and the Court of Appeals, the panel cited that, and then went through a litany of evidence of discrimination. Not the least was a smoking gun. That said flat out—we want to detain, and we want to incarcerate, and we want to remove Haitians from the U.S. And, getting back to what I said before, it was unusual then, but we actually got the document that President Reagan signed-off on, which is unheard of, I think, today—the actual document. And it's interesting how kind of almost juvenile and simplistic these things are, but he was given a document saying basically, do you want to incarcerate Haitians or not? do you want to interdict Haitians or not? check the boxes—that kind of thing. And all the bad boxes were checked.

Raymond Audain: The statistical evidence of discrimination was also overwhelming.

Ira Kurzban: We had a statistician, and the statistician said on the witness stand that the chances of Haitians being denied parole here, and everyone else being released, was the equivalent of flipping a coin, and it coming up heads 1 billion times in a row. That it was just statistically impossible—as the government claimed—that Haitians would have been detained because of their background and record—because remember, the government was claiming, oh, we made individual decisions in each of these Haitian cases, that's why they were detained and others were paroled. And so statistically, by testimonial evidence, by documentary evidence, as the Court of Appeals’ panel decision demonstrated, it wasn't even a contest, really. It was blatant, continuous discrimination against Haitians whose only crime was to seek freedom in the United States.

Raymond Audain: The Supreme Court took the case in December of 1984.

Irwin Stotzky: Interestingly enough, there was a new Solicitor General. His name was Rex Lee, and this was the first case he was arguing in front of the Supreme Court as Solicitor General. So, before the argument started, he came up to me and said the following, “Wow, this stuff is really complicated.” And I knew Ira was arguing the case, so I said to him, “Yeah, I could tell from your brief that you didn't understand any of it.”

Raymond Audain: Ira Kurzban remembers the argument well.

Ira Kurzban: The first thing is, you know, today we have kind of a core of people who argue most of the cases in the Supreme Court, which in a way I don't, I understand it, but this kind of professional core of arguers who argue 30, 40, 50 cases in the Supreme Court, I think, is unfortunate. I was, you know, I felt very lucky as a young lawyer—I was 35 at the time—that I was able to argue in the Supreme Court. So my preparation was, you know, I did a number of moot courts, and the last argument I did is, I lined up my three children at the time, who were, you know, probably between four and ten years old, and argued the case in front of them. They of course applauded me—that, you know, that boosted my confidence as a person who had never had the opportunity to argue. But there were two things that happened that I will always remember. When I opened the newspaper that morning and looked at my horoscope, it said, You will win a great legal victory. And the other is, when I looked up the Justices, I saw my father's face, which I thought was interesting. My father had passed away a few years before. And of course, you know, somebody arguing the first time, when you look at the Justices, and they're so close to you, and I was, like, in part in awe, you know, it was like, that's Justice Marshall.

Raymond Audain: Justice Marshall, as in Thurgood Marshall, the first Black Supreme Court justice, one of the architects of Brown v. Board of Education, and arguably the greatest American lawyer ever. In his book Devil in the Grove, Gilbert King explains that Marshall, the grandson of a slave, engineered the greatest social transformation in America since Reconstruction. Marshall has been described as the founding father of the new America. He was also a world-class raconteur who liked to celebrate his civil rights victories by trading war stories over a bottle of whiskey. His reputation for storytelling was also well known around the Supreme Court. Richard Revesz, who is now a professor at NYU School of Law, was one of Justice Marshall's law clerks.

Richard Revesz: When the Justice was ready to leave to go home, he didn't actually just leave or say goodbye and walk out of his chambers. He would come into the office that I shared with one of my co-clerks, which had, like, a very big leather armchair—and the Justice, as you know, was a fairly big man—and he would sit down in the chair, and then he would start telling stories about civil rights litigation, starting in the 1930s, when he was a criminal defense lawyer in Baltimore, through the 1940s and the run-up to Brown, and then the 1950s, with the actual argument in Brown. And sometimes he would be there for like half-an-hour, sometimes it was hours. Once he came on a Saturday, and he basically spoke all day, I mean, literally. And there was this norm around the Court, that if a clerk from another chambers stopped by our chambers, you know, to ask a question about a case or to ask if you wanted to have lunch or whatever they might have stopped for, and the Justice was telling a story, they could join, but they couldn't then leave. So they could, like, sit down and listen to the story—and he was very welcoming of people—but it was bad form to leave, like, in mid-sentence while the Justice was talking about litigation in the 1930s, 1940s, or 1950s. So, on a Saturday, when he actually talked most of the day, most of the law clerks were sitting on the floor in our office—there were only a couple of chairs—and the Justice was essentially holding court on the strategy for almost all of the Supreme Court law clerks, or it seemed that way. And it was extraordinary. So those were really extraordinary moments, because, you know, it's not every day that we have, like, the chance to think, oh, I am now facing a historical figure, someone who actually changed the world in a very significant way, and did so very significantly for the better, I mean, you know, it's not like, you know, we talk to admirable people, but not a lot of people meet that standard, and he clearly did. And he, of course, was a paradigm of that standard. And I remember those stories and his discussion about them extremely vividly.

Raymond Audain: Although it's been more than 30 years, Professor Revesz also remembers Jean v. Nelson vividly.

Richard Revesz: Well, I remember this being a very high stakes case. You know, I mean, every Supreme Court case is important, but some, frankly, are more important than others. And this one was widely seen as an extremely important case because of the nature of what was at stake, the people who were affected, the obnoxiousness of the government policy, the fact that the Solicitor General, General Rex Lee, was arguing it himself. So, it was one of those like exciting days at the Court. I mean, I was working on that case and it was, um, we would divide cases among the four law clerks, and that was, this was my case, so I would have been there anyway, but it was the kind of case that attracted law clerks to the oral argument, even if they had not been working on the case, because it was viewed as such a significant case. So the first thing I remember was that it was very significant.

Raymond Audain: Professor Revesz also remembers oral argument.

Richard Revesz: I actually remember only one thing about oral argument. Well, two things. One, how good Ira was. I was incredibly taken by his effectiveness. I didn’t know him, and he looked young. You pointed out to me that he was 35, I didn’t maybe know that or remember that, but he looked young. But he was amazingly effective. And I remember the passion he brought to the case, and the intelligence, and the knowledge—he was extremely impressive. And then the other kind of like thing that was somewhat memorable is that the Justices kept referring to his opponent as General Lee, which has a strange ring to it. I mean, the Solicitor General is always referred to as General, but it's not always someone who actually, you know, fought for the Confederacy.

Ira Kurzban: My argument was, even if one said that Due Process may have prohibited someone's release at the border, this was an Equal Protection issue. And just as there may not be a fundamental right to be educated in America, you couldn't say that Black children couldn't be educated and white children could. The Equal Protection component of the Due Process Clause really has kind of a different, um, a different, you view it in a different way. And I think, in a way, Justice Marshall, in the dissent, was saying that, which was, you know, there's this whole history of the government getting great deference when it comes to immigration, even discriminating based on national origin, and the sense that they can pick and choose what benefits are given to certain groups versus other nationalities and so forth. So, I think Justice Marshall correctly recognized that, but then took the next step and said, well, look—and this was part of our argument—Haitians are clearly persons within the Fifth Amendment of the Constitution, and to say that at the border they can’t assert a right to come in does not mean they have no rights at all. Justice Marshall talks about that people have criminal rights. In other words, if you stop somebody at the border and you arrest them in a criminal case, just because they're an inadmissible alien doesn't mean they have no rights. And I think the same held true, and we believe the same held true, for other aspects of immigration. While they couldn’t assert, Haitians couldn’t assert a Due Process right to get residency or to actually get asylum, they had loads of Due Process and Equal Protection Rights when it came to issues like detention, that you couldn't just detain Black refugees and not detain white refugees, that, in doing so, you violated the Constitution. And that's how we argued the case.

Raymond Audain: For the Petitioners, the opportunity to bring their case to the high Court was extremely important, and they were committed to presenting the case in a way that centered questions of Equal Protection.

Ira Kurzban: There was a sense of injustice done to Haitians in the U.S. who were fleeing the horrible conditions under Baby Doc, and that they wanted to remedy that injustice, and they felt very strongly that the American judicial system would listen to them. As the lawyer, you’re always a little skeptical as to—and even more so, I think, today—as to whether or not you will necessarily get justice, but there was a very, very, very strong feeling in the Haitian community at the time that we need to go to court, that the courts will vindicate our rights. And I remember in each of these cases, and it wasn't just Jean v. Nelson—it was HRC v. Baker, when the Haitians were taken to Guantanamo and other cases—the courtroom—which was this huge grand, you know, courtroom built, I think, during the Depression—would be packed with Haitians coming to see what was going to be done and how they would get justice from our legal system. So, it was a, I would say a core value in what was going on at the time.

Raymond Audain: Professor Revesz suspects that the case piqued Justice Marshall's interest as a former civil rights attorney.

Richard Revesz: My sense is that he was familiar with these very obnoxious, constitutional law cases of the era and of the fact that they were available for application in racially discriminatory manners. And both those things came together, I mean, the kind of pure obnoxiousness of the case and also the fact that it could essentially be invoked to practice race discrimination.

Raymond Audain: In the end, the Court didn't reach the Equal Protection issue.

Richard Revesz: I left the oral argument thinking, several of the Justices are trying to make this constitutional issue go away, and then obviously that's what happened.

Raymond Audain: And Justice Marshall took the majority of the task for that. For Justice Marshall, the law clearly established that the asylum seekers were protected by the Constitution’s Equal Protection guarantee. He also cautioned against relying on the government's insistence that regulations precluded immigration officials from discriminating. Those non-constitutional constraints, he thought, were too sketchy and too susceptible to manipulation. Ira Kurzban thinks this was prescient.

Ira Kurzban: You know, if you read the dissent, in a way you feel like, well, it's undercutting the notion that the government has to not discriminate based on nationality, at least, because Justice Marshall, to reach the constitutional question, in a way undermines the regulatory and statutory rights of non-discrimination. But I must say in retrospect, he was right. I mean, look at what's happening today. You know, Justice Marshall focused on the fact that the government had broad discretion, and he believed that they would use that to discriminate. And obviously we've seen that now, where an agency and an executive branch gone amok, you know, to do whatever they want to do under the guise of discretion, and they've said, we have this broad discretion to, you know, kick everybody out of the country, to literally throw them out of the country at the southern border. And, so, in a way he was quite right. And his analysis, that when you give an agency this kind of broad discretion, even though the Solicitor General is standing in front of the Supreme Court and said, we would never discriminate based on race or national origin, and we would never discriminate under the statute, that inevitably that policy would be changed. So that you needed a clear court, constitutional mandate saying, no, you can't discriminate based on race or national origin in this context. And, so, even though it, to some extent, it undercut the argument that we were making about how the regulations and statutes had to be interpreted in a nondiscriminatory way, he was looking to the future, and he was right.

Raymond Audain: For Irwin Stotzky, the power of Justice Marshall's dissent lay well beyond his legal reasoning.

Irwin Stotzky: I re-read it the other day and thought, my God, what a wonderful opinion, particularly in light of Justice Rehnquist’s awful opinion, in which he spends half of his opinion talking about the procedural aspects of it, hardly ever mentions the cases, and never talks about what happened to the Haitians. That's why Justice Marshall's opinion is so important, in my opinion. It's not only for the legal reasoning, it's for the right to be seen as a human being and to be protected like anybody else would be protected in this country. So, it's really a wonderful display and extremely important for the integrity of human beings in front of the awesome, awesome power of the government. And,so, I'll be forever in debt for what Justice Marshall did in this case.

Muzaffar Chishti: And I think it was not lost on people that, that decision, which was, you know, six to two from my memory—lopsided—that Justice Marshall, though, he could have just easily said that, look, at the basic level, the plaintiffs here won the fundamental argument, that the application of the parole statute cannot be used in a racial way, that you could just rest on that. But he really found it important to make the statement that, look, some things are important to be told in a full-throated way. So, I think people who were looking at Justice Marshall to be that voice, they found that voice. And, you know, that's important in the evolution of cases like this.

Raymond Audain: So is the effort. It illustrated once again that, in order to effect meaningful, enduring, substantive change, litigation alone is seldom enough. Community organizing, activism, and sustained popular resistance are also very important.

Muzaffar Chishti: In this regard, we obviously talk about litigation, but litigation became the focal point for the political movement, in my memory. That, you know, the Ira Kurzbans and Rick Swartzs and the Peter Scheys of the world brought the litigation. But Jean-Juste, who was a very charismatic priest in Miami, he was able to flood the court with supporters of the Haitian claims. Though they were there just as spectators in the litigation, that sort of gave them the organizing principle they could enroll around. So, I think the notion that you must have patience, and that there's a trajectory to how these movements evolve and, and more importantly, which worked quite well, is that the combination of, it's not just one single thing that works. It's a combination of litigation, advocacy, coalition building, and communication and messaging, that, all combined together, is what makes an effective strategy.

Raymond Audain: Justice Marshall's dissent also seems to carry a message for future civil rights advocates.

Muzaffar Chishti: People who really believe the principles of the Constitution are important, they will keep on pushing the envelope, and they should keep on pushing the envelope, because it's only when you push the envelope will you finally get the results that you want. And I think that at some level is what Justice Marshall was trying to hammer-in in his dissent. He was not just giving a message to the Chief Justice in that case, he was also giving a message to future litigators and to future advocates on unpopular causes. That, don't shy away from making the larger, more important point, even if you have won the victory on the smaller and less ambitious points.

Raymond Audain: In the end, although they didn't win the Equal Protection claim, the Petitioners in Jean did secure the release of almost all of the detained asylum seekers. Although there is no doubt about its legal significance and about the moral clarity of Justice Marshall's dissent, the most important things about the effort are the lives that it helped to save, the people and movements it empowered, and the communities it helped to create.

Ira Kurzban: Jean v. Nelson will always stand, I think, in the Haitian community, as an important victory for vindicating the rights of Haitians and for all those generations of family members who were released, who ultimately became residents of the United States, whose children went on to go to law school and medical school and to do other important things in the Haitian community in south Florida. And, you know, the thing I'm most proud of in all of this is not the legal victories, one way or another, but how we really transformed the community—for which the government was seeking to completely remove from south Florida—into a vibrant and vital community whose children and eventually grandchildren would go on to be hardworking professionals and, and others in the community in south Florida and throughout the United States. And, you know, for me, I still get letters from people who thanked me and tell me their child is going to some prominent college, and that if it wasn't for what we did in Jean v. Nelson, they probably would be back in Haiti now. So, there are both practical consequences as well as legal consequences, but, really, I think the practical consequences outshine everything because it really affects what happened to all those people.

Raymond Audain: Please join us next time, when my colleague Sarah Hamilton-Jiang will discuss how the criminalization of these Haitian asylum seekers in the 1980s gave rise to the modern-day immigration detention system. Thank you to our guests, Ira Kurzban, Irwin Stotzky, Steve Forester, Muzaffar Chishti, and Richard Revesz. Thanks also to Here & Now from NPR and WBUR, for giving us permission to use their audio at the beginning of the episode. The song that opens the episode is called Sanba yo Prann Pale, and it’s a collaboration between Lakou Mizik and the DJ Producer Joseph Ray. This episode was produced by Keecee DeVenny and edited by Zach McNees. For more information about the Other Side of the Water podcast series and our conference—Immigration, Equal Protection, and the Promise of Racial Justice: The Legacy of Jean v. Nelson—please see our website, jeanvnelson35.org. Thanks for listening.