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Opposed to the use of race in higher education, the conservative supermajority upholds it when it comes to deportation.
by Peter M. Shane
By now, it’s routine for the Supreme Court under Chief Justice John Roberts to misuse its so-called emergency docket to short-circuit lower court orders blocking the Trump administration’s aggressive anti-constitutionalism. But its decision
this week to lift a lower court injunction barring Immigration and
Customs Enforcement (ICE) agents from conducting raids around Los
Angeles by armed and masked agents engaged in racial profiling is among
the most shameful. In the context of affirmative action, this Court has
piously opined:
“The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.” Yet when it comes to immigration,
the Court will allow ICE to proceed for now as if any brown-skinned,
Spanish-speaking, low-wage worker in central California is reasonably
suspected of being deportable.
The
public owes Justice Brett Kavanaugh some gratitude for explaining his
vote in concurrence with the majority; often, the Court’s “emergency”
orders arrive simply as unsigned riddles. His opinion, however, is
deeply unpersuasive. Still, it provides a service by presenting both the
Court’s seemingly blinkered understanding of the practices in dispute
and its disregard for the role of trial judges in fact-finding
decisions.
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The case in question, Vasquez Perdomo v. Noem
in the lower courts, was filed as a potential class action brought by
five individual plaintiffs and three membership organizations. They
proved to the satisfaction of the U.S. District Court for the Central
District of California that senior federal immigration officials working
in and around Los Angeles had authorized ICE agents to stop and detain
individuals for interrogation based entirely on four highly generalized
factors: (1) their apparent race or ethnicity; (2) whether they spoke
Spanish or English with an accent; (3) the type of location at which
they were found (such as a car wash or bus stop); and (4) the type of
job they appeared to work. In other words, instead of responding to a
“reasonable suspicion” that might legally justify individual stops, ICE
was detaining people based on characteristics likely to describe a great
many innocent people. Justice Sonia Sotomayor explains in her dissent
that the Fourth Amendment does not allow stops based on criteria that
broad. Yet in Central California, a judicial district where nearly half
the population identifies as Latino or Hispanic, there are quite likely
millions of U.S. citizens and fully documented alien residents whom such
an indiscriminate, ethnicity-based filter would catch. The Ninth
Circuit had already declined to stay the District Court’s injunction
barring ICE’s practice, viewing the plaintiffs as likely to prevail
after a full trial and judging that the government would suffer no
irreparable harm while its four-factor searches were suspended.
Kavanaugh,
to the contrary, argues that the government is likely to prevail on two
issues. One is whether the plaintiffs have standing to sue—in other
words, did their allegations raise a sufficient likelihood of imminent
harm to warrant an injunction barring interrogation stops that have not
yet occurred? But “standing” is a notoriously malleable doctrine, and
the case Kavanaugh cites as relevant precedent for the government quite
easily supports the opposite conclusion.
City of Los Angeles v. Lyons
is a 1983 case involving a motorist stopped for a vehicle code
violation. Despite offering no resistance to officers, Adolph Lyons was
placed in a chokehold that rendered him unconscious and damaged his
larynx. He sought both damages for his injury and an injunction against
the use of chokeholds by the police. The Court said Lyons could sue for
damages based on the actual chokehold, but not for an injunction against
future police practices. Lyons, the majority concluded, had not proved
“a sufficient likelihood that he [would] again be wronged” by the police
employing excessive force.
Lyons and Vasquez Perdomo are
fundamentally different. Because Lyons was suing only as an individual,
speculation about future harm could focus only on him personally. The
plaintiffs in Perdomo
are asking the trial court to allow them to proceed as a class action
on behalf of “[a]ll persons who, since June 6, 2025, have been or will
be subjected to detentive stop by federal agents in the District without
a pre-stop, individualized assessment of reasonable suspicion
concerning whether the person (1) is engaged in an offense against the
United States or (2) is a noncitizen unlawfully in the United States.”
There are thousands, if not millions, of people whose futures are at
stake.
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Moreover, by the time Lyons’s case was heard in 1982, the Los Angeles Police Department had adopted a ban
on “bar-arm chokeholds” and entered into a moratorium—since made
permanent—against “carotid artery” holds, except in circumstances that
would justify the use of lethal force. Under these circumstances, the
Court had every reason to doubt that Lyons needed the protection of a
court order barring the future use of chokeholds against him. As for Vasquez Perdomo,
Justice Sotomayor describes the vastly different policy orientation at
stake: “Secretary of Homeland Security Kristi Noem has called the
District Judge an ‘idiot’ and vowed that ‘none of [the Government’s]
operations are going to change.’ The CBP Chief Patrol Agent in the
Central District has stated that his division will ‘turn and burn’ and
‘go even harder now,’ and has posted videos on social media touting his
agents’ continued efforts, chasing, cuffing, [and] deporting’ people at
car washes.” Against this background, any brown-skinned,
Spanish-speaking Californian appearing to work in a low-wage occupation
or even waiting for a bus has reasonable cause to fear being stopped by a
federal agency running amok.
Kavanaugh
suggests that the government will likely prevail on the argument that
its four factors are sufficient to establish reasonable suspicion. After
all, he argues, it is probable that many of the undocumented aliens in
California come from Mexico or Central America, “do not speak much
English,” and seek employment in a predictable set of jobs that “do not
require paperwork.” None of this negates the fact, however, that without
some additional factor—for example, the record of a particular employer
in hiring undocumented persons—these elements alone are likely to
describe a large percentage of the low-wage workforce in Central
California, documented or not.
Finally,
under Supreme Court precedent, emergency relief for the Trump
administration should require a showing that the so-called balance of
equities—weighing the harms caused to the government by the injunction
versus the interests at stake for the defendants—is tilted in the
government’s favor. In conducting his own balancing, Kavanaugh
drastically minimizes the interests of the detained individuals.
Undocumented persons who are detained, he claims, do not have any
“especially weighty legal interest” in avoiding interrogation based on
ICE’s criteria. Persons lawfully present, he says, face only
“questioning” that is “typically brief.” They will “promptly go free
after making clear to the immigration officers that they are U.S.
citizens or otherwise legally in the United States.” Unfortunately, the
District Court record shows that the second of these claims is untrue.
And Kavanaugh’s accounting does not acknowledge the reasonable fear and
apprehension of millions of law-abiding Californians who fit the
“suspect” criteria and are stigmatized by ICE’s policies.
In Trump v. Hawaii,
the Court’s 2018 decision upholding the so-called “Muslim ban” imposed
by the first Trump administration, Chief Justice Roberts took umbrage at
the suggestion in a Sotomayor dissent that the majority was making an
error of judgment akin to the Court’s infamous Korematsu
decision. Yet one paragraph in the Kavanaugh opinion struck me as
worthy of a similar rebuke. He writes: “To the extent that excessive
force has been used, the Fourth Amendment prohibits such action ... I
agree with the dissent on that point. But ... this injunction against
brief stops for questioning does not address the use of force issue.”
Korematsu legitimized
the decision of the Franklin D. Roosevelt administration to place
Japanese-Americans in internment camps because, the authorities claimed,
it was too difficult to sort out the loyal from the disloyal as
individuals. But Justices in the majority denied they were doing any
such thing. Fred Korematsu had been convicted only of violating a
so-called exclusion order, requiring him to leave the San Leandro area
but not specifying where he was to go. The Court refused to “pass at
this time upon the whole subsequent detention program in both assembly
and relocation centers,” because “the only issues framed at the trial
related to petitioner’s remaining in the prohibited area in violation of
the exclusion order.” In other words, the majority could not be
expected to recognize that Japanese-Americans were effectively being
moved into internment camps by “excluding” them from everywhere except
the camps themselves and where they would be assembled for transport.
Kavanaugh
implicitly endorses a similar inattention. As Sotomayor wrote this
week: “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 they make a living by doing manual labor.”
Kavanaugh’s opinion implicitly asks readers to keep this reality outside
their field of vision.
We
do not know whether the five Justices other than Kavanaugh who are also
content to leave ICE undisciplined are motivated by the standing issue,
the Fourth Amendment issue, or a disinclination to confront the Trump
administration in a case where it might choose outright defiance of the
high court. But their unexplained votes do them no credit. As Sotomayor
says, what the plaintiffs proved in the trial court about ICE’s conduct
is “unconscionably irreconcilable with our Nation’s constitutional
guarantees.” This Court is not meeting the challenge.
Peter
M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law
Emeritus at Ohio State University and a Distinguished Scholar in
Residence at the New York University School of Law. |