The Supreme Court's brazen approval of racial profiling
Any hope the court would be a check on the Trump administration seems lost.
The Supreme Court abandoned basic constitutional principles in allowing Immigration and Customs Enforcement agents to engage in blatant racial profiling. As Justice Sonia Sotomayor said in a powerful dissent: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish and appears to work in a low wage job.” But that is exactly what the Supreme Court approved on Monday in Noem v. Perdomo.
A federal district court in Los Angeles found that ICE agents were stopping individuals without reasonable suspicion that they were unlawfully in the United States. The district court identified instances of people—citizens and non-citizens—who were stopped based on their apparent ethnicity, the language they spoke, and where they worked. The Fourth Amendment requires reasonable suspicion before anyone—citizen or non-citizen, documented or undocumented—is stopped by law enforcement officers. The Constitution’s guarantee of equal protection prevents people from being stopped based on race.
The federal district court required that ICE agents comply with the Fourth Amendment and stop only individuals for whom there is reasonable suspicion that they are in the United States unlawfully. The court said that ICE agents could not rely on four factors in stopping an individual: apparent race or ethnicity; speaking Spanish or speaking English with an accent; presence at a particular location (e.g., bus stop, car wash, tow yard, day laborer pick-up site, agricultural site, etc.); or the type of work the person does.
The U.S. government appealed to the U.S. Court of Appeals for the Ninth Circuit. In a lengthy opinion, the appellate court upheld the district court’s order.
But the Supreme Court, in an apparent 6-3 ruling, reversed and allowed ICE to resume its racial profiling while the matter continues to be litigated in the lower courts. It is striking that the court did this without a word of explanation. The court simply issued an order without any opinion. “Because I said so” is never persuasive, and it is less so coming from an institution that traditionally provides explanation for its rulings. This is especially so when both the district court and the federal court of appeals provided lengthy, careful explanations of their reasons for finding that ICE was violating the Constitution.
Justice Brett Kavanaugh, one of the six conservative justices in the majority, wrote an opinion—the only one from the majority—that was not joined by any other justice. Much in it was very troubling. First, Kavanaugh seemed to be saying that because the large number of suspected undocumented immigrants in Los Angeles justifies stopping individuals based on their apparent ethnicity, the language they speak, and where they work. He wrote: “there is an extremely high number and percentage illegal immigrants in the Los Angeles area, that those individuals tend to gather in certain locations to seek daily work; that those individuals work in certain kinds of jobs … and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.”
The core of the Fourth Amendment is that no one can be stopped by the police without reasonable suspicion that he or she has committed a crime. Kavanaugh would dispense with this and allow race and language and place of employment—none of which violate the law—to be the basis for reasonable suspicion.
Kavanaugh wrote that “[t]he interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law.” This profoundly misunderstands the Fourth Amendment: It protects the right of every person—citizen or non-citizen—to be free from being stopped by the police unless there is at least reasonable suspicion.
Second, Kavanaugh’s approach provides no remedy at all, even if it is found that ICE was violating the Constitution. Kavanaugh wrote that none of the plaintiffs can sue for an injunction because none can show that he or she is likely to be stopped by ICE agents again in the future. But ICE’s aggressive enforcement in specific neighborhoods that have predominately Latino residents means that individuals are likely to be stopped again. Also, Justice Kavanaugh’s approach would mean that ICE could openly announce it was stopping anyone who appeared Latino and no person could sue to stop this because none could prove that he or she would be stopped in the future.
In a footnote, Kavanaugh said that those stopped in violation of the Fourth Amendment might sue for money damages. But the Supreme Court has made it almost impossible to successfully sue federal agents who violate the Constitution for money damages.
The implications of the court’s ruling are devastating for the Constitution and for people’s lives. As Sotomayor powerfully wrote: “Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact that they make a living by doing manual labor. Today, the Court needlessly subjects countless more these same exact indignities.”
This is just the latest in a series of rulings in which the six conservative justices have approved Trump administration actions that violate the Constitution. The hope that the Supreme Court would be a check on the regime’s lawlessness is rapidly vanishing. If the court does not uphold the Constitution and the rule of law, is there anything to protect our constitutional democracy?
Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.
 | A guest post by
|
The Current Supreme Court, due to their erroneous decisions, and apparently unlimited hubris, needs to be abolished or completely restricted by Congress, if we in fact get Congress back in 2026. They are corrupt, using unchecked power to help facilitate the agenda of a convicted felon who happens to be our current President. They are shredding the constitution with each decision and defying the will of the voters who are living with the consequences of their feckless mandates. If allowed to continue, there needs to be strict guidelines as to behavior that prevents outside influence and money from tainting their decisions, and concrete term limits. They are actually doing more damage to our democracy than Trump. There are only three justices worth keeping out of this group of nine, as far as I am concerned. Sotomayer, Jackson, and Kagen are the standard that should be applied to a serving justice. The rest need to be impeached and removed for failing to honor our constitution and implement their decisions accordingly.
I can't give this a like because the ruling by the six Christian Nationalists on the Supreme Court is so disgusting. This is a clear violation of the 4th Amendment.
In addition, nowhere in the Constitution can one find Presidential immunity and "the major questions doctrine".
Congress enacted, by law, all Federal agencies. With the six allowing the firing of board members/officers/chairs of various agencies which Congress could only be fired for cause, the six are defying the will of Congress.
Gerrymandering is unconstitutional. The Founders formulated the House of Representatives to ensure representation by the people in Government. Gerrymandering is not politics. Gerrymandering is taking power away from the many and giving power to the few. Gerrymandering is actually taxation without representation.
These six don't care about precedent, the rule of law nor the Constitution. They should all be impeached.
With the full support of the six Christian Nationalists on the Supreme Court and GOP Congressional members the Felon is making the United States an authoritarian theocracy, with the Felon as leader and the American oligarchs running the Country (Putin's Russia).