from the papers-please-is-now-the-law-of-the-land dept
You know that Family Guy meme where they have the skin color chart to determine how suspicious someone should be? Yeah, you know the one.
Well, the Supreme Court just essentially codified that into constitutional law. And they did it on the lawless shadow docket without a real explanation, because of course they did.
In a stay order issued yesterday with zero reasoning from the majority, the Supreme Court told ICE agents in Los Angeles that yes, you can absolutely detain people based on looking Latino, speaking Spanish, working certain jobs, and being in certain locations. The only “explanation” (if you can really call it that) comes from Justice Kavanaugh’s solo concurrence—which apparently was so legally dubious that not even a single one of the other conservative justices would sign on to it. But it is the only explanation given for the majority ruling.
It reverses two lower court rulings that said, quite reasonably and clearly, that you can’t just arrest people for existing while brown. But hey, why let basic constitutional principles get in the way of a good old-fashioned roundup?
This is yet another example of the Supreme Court’s increasing reliance on its shadow docket to make monumentally consequential rulings without full briefings, oral arguments, or even basic explanations. As we’ve covered extensively, the Court has been using emergency applications to essentially rewrite major areas of law while hiding behind the fiction that these are just “procedural” matters.
The pattern is always the same: government asks for emergency relief, the Court grants it with minimal (if any!) explanation, and suddenly we have new constitutional law that affects millions of people. No deliberation, no transparency, just judicial fiat—always in favor of Donald Trump’s authoritarianism—delivered with no explanation.
Justice Sotomayor’s dissent calls this out directly:
The Court’s order is troubling for another reason: It is entirely unexplained. In the last eight months, this Court’s appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially… Its interest in explaining itself, unfortunately, has not.
She’s absolutely right. When you’re essentially authorizing racial profiling on a massive scale, maybe you should explain your reasoning? But that would require the majority to actually defend their decision, which they apparently can’t or won’t do.
The only justice willing to put his name to an explanation is Kavanaugh, and his concurrence is a masterpiece of unsupported assertions and constitutional hand-waving:
About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million.
This is a stunning claim that goes way above most credible estimates, and Kavanaugh provides zero citation for it. Just assertions pulled from thin air to justify mass detention in violation of the Fourth Amendment. Other estimates suggest the actual number is less than half of what Kavanaugh claims.
Even more laughably, Kavanaugh suggests that being wrongly detained is no big deal for American citizens because they can just prove their citizenship and be on their way:
Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
Tell that to Jason Gavidia, the U.S. citizen described in this very case who was pushed against a fence, had his arms twisted behind his back, and whose ID was never returned to him. Did Kavanaugh not read the appeals court’s ruling that described how insufficient Gavidia’s proof of citizenship was to ICE agents?
To give just one example, Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angeles and identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].” The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.” The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.” He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.
Kavanaugh’s response to that example in this very case is to say, “that individual will be free to go after the brief encounter?”
Or tell that to Jorge Viramontes, the dual U.S.-Mexican citizen who was been repeatedly harassed by ICE. As described in Sotomayor’s dissent:
In the nine days between June 9 and 19, agents returned four times, each instance in the middle of the workday. On one occasion, an agent questioned Viramontes, asking if he is a citizen and requesting that he show his ID. Viramontes replied that he is a dual U. S. and Mexican citizen and supplied his California driver’s license. The agent said the ID was insufficient, “grabbed [his] arm,” escorted him to a vehicle, and drove him to a “warehouse area” for further questioning
Brief encounter? No harm done?
And that’s just from this case. This week alone, we’re hearing reports of ICE raids at Hyundai facilities that detained people here on legal visas. While most of the coverage has been about South Koreans here (often legally), the raid also swept up some Latino workers, including those with legal work permits, some of whom are still locked up.
Kavanaugh’s fantasy that these encounters are “brief” and that people are “promptly” released doesn’t match reality on the ground, let alone the examples in this very case before him.
Here’s where Kavanaugh’s logic completely falls apart. He suggests that people falsely detained can seek remedies under the Fourth Amendment:
To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court.
But Kavanaugh himself has consistently ruled that you basically have no meaningful Fourth Amendment rights when it comes to immigration enforcement. In Egbert v. Boule, he signed onto the majority decision saying exactly that. So, he’s basically saying your only recourse is not if your Fourth Amendment rights are violated, but only in cases where “excessive force” is used. And I’m going to guess that Kavanaugh’s definition of “excessive” may be equally malleable if the victim is on the lower half of the Family Guy color chart.
It’s legal gaslighting of the highest order.
What we’re witnessing is the formalization of a “papers please” society—but only if you’re not white. As Justice Sotomayor notes in her dissent:
The Fourth Amendment protects every individual’s constitutional right to be “free from arbitrary interference by law officers.” … 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.
The “papers please” demand has historically been the hallmark of authoritarian surveillance states. It’s what we’ve pointed to as the obvious sign of an unfree society. But apparently, if you’re Latino in Los Angeles, that’s just your new reality.
The most telling part of Kavanaugh’s concurrence might be this line:
The 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. That is not an especially weighty legal interest.
This framing gets the entire constitutional setup completely backwards. The Fourth Amendment protects “the people“—not citizens, but people. It applies equally to everyone in the US, regardless of immigration status, and for good reason: constitutional rights exist precisely to protect people from government overreach when the government suspects them of wrongdoing.
Kavanaugh’s logic essentially argues that if you assume someone is breaking immigration law, their constitutional protections become less “weighty.” But that’s the opposite of how rights work. If constitutional protections only applied to people the government had predetermined were law-abiding, they wouldn’t be protections at all—they’d just be privileges the government could revoke at will.
What Kavanaugh is really saying is: if you’re Latino, it’s guilty until proven innocent. And even setting aside the stories we keep seeing of U.S. citizens and legal residents being swept up in these raids, the Fourth Amendment doesn’t have a citizenship test and doesn’t disappear just because someone might have violated immigration law.
Sotomayor also highlights how crazy it is that the majority ruled for the Trump administration, given that they are supposed to show “irreparable harm” would occur absent such a ruling, and DHS already made clear they were ignoring the lower court orders (suggesting no actual harm from letting those orders stay in place):
Moreover, the on-the-ground reality contradicts the Government’s and the concurrence’s claim of a chilling effect. Since the issuance of the TRO, 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,” …. Accordingly, there is no reason to credit the Government’s assertion that it will suffer irreparable harm.
If anything, the irreparable harm should be to those whose Fourth Amendment rights will now be violated:
Instead, it is the people of Los Angeles and the Central District who will suffer from this Court’s grant of relief to the Government. Immigration agents are not conducting “brief stops for questioning,” as the concurrence would like to believe…. They are seizing people using firearms, physical violence, and warehouse detentions. Nor are undocumented immigrants the only ones harmed by the Government’s conduct. United States citizens are also being seized, taken from their jobs, and prevented from working to support themselves and their families.
The Appeals Court ruling in this case was clear and direct: In the US, the Fourth Amendment applies to everyone, and we don’t make you a suspect because of the color of your skin or the language you speak.
But the Supreme Court’s conservative majority couldn’t let that stand. They had to step in immediately to ensure that ICE could continue its unconstitutional practices. No deliberation needed. No explanation required. Just pure judicial activism in service of authoritarian immigration enforcement.
As Justice Sotomayor notes in her dissent, the Court has essentially created a second-class citizenship where your constitutional protections depend on how you look:
More fundamentally, it is the Government’s burden to prove that it has reasonable suspicion to stop someone. The concurrence improperly shifts the burden onto an entire class of citizens to carry enough documentation to prove that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.
The equities therefore lie with the plaintiffs. 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. Today, the Court needlessly subjects countless more to these exact same indignities.
So here we are: what began as a meme about judging people by their skin tone is now essentially constitutional law, courtesy of a Supreme Court that won’t even bother to explain why. The only justice willing to put his name to a justification offers legal reasoning so shoddy that even his conservative colleagues won’t sign on to it.
This is judicial lawlessness masquerading as emergency relief. When the Court uses its shadow docket to authorize systematic racial profiling without explanation, we’ve moved far beyond procedural shortcuts into something much darker. The Constitution may say “the people,” but the Supreme Court has decided some people are more equal than others—and they don’t even have to explain why.
Filed Under: 4th amendment, brett kavanaugh, dhs, ice, immigration, papers please, scotus, shadow docket, sonia sotomayor, supreme court
