Supreme Court blesses racial profiling by ICE

In greater Los Angeles, the Trump administration’s goal of deporting millions of people is being operationalized through often violent raids that target people who appear Latino while waiting for the bus or working in low-wage jobs. A shorter way to say this is racial profiling of low-income people. Today, the Republican-appointed justices on the Supreme Court blessed this approach.

The ruling, on the so-called shadow docket, is yet another in a long string of cases since the spring in which the GOP appointees have allowed the Trump administration’s power grabs. From firing federal workers and agency heads to deporting people to dangerous countries without due process, the court’s majority has waived aside precedent, clear statutory language, and even constitutional protections in order to give this president increasing power. This time, the pesky thing standing in the way was the Fourth Amendment.

“The Fourth Amendment protects every individual’s constitutional right to be ‘free from arbitrary interference by law officers,’” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. “After today, that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.”

Among the administration’s long list of recent wins, this case is particularly foreboding. It allows the government to target people because of their appearance and how they speak, as well as where they were found and what kind of work they do—factors that the district court found likely violate the Fourth Amendment. To move freely in this country, it may become increasingly important to look white. As Sotomayor, the court’s only Latino justice, wrote in dissent, the majority has created a “a second-class citizenship status” of people who may be subject to harassment. Today’s decision sets a course for the United States to become a country where masked officers pluck people from streets and businesses because of how they look.

But to the court’s majority, the Latino citizen or visa holder who must now carry immigration documents or a passport every time they leave the house, and who might endure repeated harassment from federal agents anyway, is not the real victim. Instead, granting emergency relief to the Trump administration indicates the justices think the greatest harm is that the government might be forced to turn away from indiscriminate raids and put more effort into finding undocumented immigrants while this case challenging its tactics moves through the courts. As former prosecutor Ken White, a frequent media commenter, summed up the court’s holding: “Supreme Court Rules 6-3 That Fundamental Interests Of United States Of America Would Be Irreparably Harmed If It[s] Race-Based Harassment And Detention By Masked Thugs Were Even Temporarily Halted.”

It has become typical that even in extraordinary opinions granting the administration new powers, the GOP appointees provide little to no explanation. On Monday, the court’s majority once again declined to explain its rationale in a written decision—possibly because it doesn’t even have a cohesive argument. But Justice Brett Kavanaugh nonetheless provided a concurrence, a kind of opinion that usually accompanies another justice’s fuller explanation. Perhaps Kavanaugh’s attempt to explain his reasoning in this case provides a partial explanation for why the majority so often remains silent: to show its reasoning would be to betray just how weak that reasoning is.

Kavanaugh’s words are all we have to understand the court’s decision. And while the explanation he provides is poor, that in itself is illuminating. The only way Kavanaugh can justify the government’s actions is to put on blinders, ignore the fact-finding performed by the district court, presume the Trump administration is acting in good faith, and even ignore the actual policy that the Trump administration is applying. You don’t need to be a lawyer to see the flaws, or read the counterpoints in Sotomayor’s dissent, to see that some of what Kavanaugh writes simply doesn’t make sense.

Kavanaugh, for instance, claims that the plaintiffs in this case, which include citizens who have been detained by ICE during its raids as well four groups that represent immigrant and worker rights, don’t have standing to challenge the administration’s immigration enforcement in Los Angeles because individuals and association members are unlikely to be detained again. “What matters is the ‘reality of the threat of repeated injury,’” he writes, before ludicrously concluding that the plaintiffs “have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors—and certainly no good basis for believing that any stop of the plaintiffs is imminent.” That must be news to the millions of people in Los Angeles who now fear leaving their homes, not because they have done anything illegal but because simply being at work, waiting for the bus, or going to Home Depot is enough to get slammed against a wall or taken to a warehouse for questioning.

If you are a Latino citizen who takes the bus to work in Los Angeles or frequents Home Depot, and ICE detains you once, what would insulate you from the same thing from happening again? Of course, the answer is nothing. Kavanaugh’s reasoning here seems to completely ignore how ICE is choosing its targets, even though that is literally the subject of the lawsuit.

Kavanaugh’s rejection of the facts continues when he brushes aside the often violent reality of ICE raids, as documented by the plaintiffs, and instead dismisses an ICE stop as a minor inconvenience. “As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.” Sure, that’s possible.

But Kavanaugh’s chipper language is belied by recent images of hundreds of people being shackled at a Hyundai plant site in Georgia, and bused 100 miles to a detention center, including reportedly people with valid work permits and citizens—even those with their immigration documents on them—where some were held for days. Evidence presented by the plaintiffs in this case demonstrated that citizens were pinned against walls and driven away for questioning. There is an indignity that goes along with always having to carry papers because of what you look like. But Kavanaugh doesn’t acknowledge any of that. To do that, he would have to acknowledge that the most-harmed party might not actually be Trump and his plans.

“We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,” Sotomayor wrote. In LA now, that is the reality, at least as long as this case continues. And there’s no reason in this opinion to assume it won’t soon be the reality for the rest of us, too.