Jonathan P. Baird

For the U.S. Supreme Court majority, poor quality decisions are the new normal. They draft edicts on major issues – not opinions. Such is the case with their new shadow docket decision on racial profiling. They give the okay to racial profiling, a practice previously considered unconstitutional and they don’t bother to explain their reasons. It is not clear how such an edict can, in any way, be precedential.

In the case of Noem v Vasquez Perdomo, the Court ruled to halt a lower court order that had found certain criteria used by federal immigration agents conducting raids violated the Fourth Amendment. That foundational amendment protects all persons (not just citizens) against search and seizures without reasonable suspicion. Reasonable suspicion has typically required specific individualized articulable facts.

The lower court had prohibited ICE agents in California from stopping or arresting based on four factors: apparent ethnicity; whether they spoke Spanish or had an accent; whether they were in a certain location where immigrants may gather; or if they worked a job considered common to undocumented immigrants.

Now the Supreme Court majority offers a free pass on racially profiling Latinos. They are allowing unidentified men in masks with guns to stop Latinos based on the fact they are Latino. Nothing could be more antithetical to the Fourth Amendment requirement that there be some individualized basis for a stop beyond how you look or talk.

This is the same court that explicitly said race could never be considered in college admissions but, in this circumstance, it is fine. They failed to comment on the fact they just said race can’t be considered across-the-board in voting rights and education. As noted, the Court majority didn’t explain their reasoning. The Supreme Court has demonstrated an increasing tendency to make important rulings with no reasoning or explanation. They appear to have forgotten that their legitimacy depends on the quality of the explanation they offer when deciding.

The Ninth Circuit Court of Appeals had unanimously affirmed the District Court decision in Vasquez Perdomo with detailed reasoning. The Supreme Court gave no deference to those opinions. While their order is not a final decision on the merits it doesn’t bode well for any final decision. It is hard to imagine they would have issued their order if there were not six votes supporting racial profiling.

The only thing offered by the Court majority is a concurrence signed only by Brett Kavanaugh. Maybe he wrote it because the Court has received so much flak about the shadow docket. Justice Kavanaugh wrote:

“The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs, who work or appear to work in jobs such as construction, landscaping, agriculture or car washes that often do not require paperwork and are therefore attractive to illegal immigrants, and who do not speak much if any English. If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go.”

Reading that, I did wonder about the out-of -touch world Kavanaugh inhabits. His wealthy, preppy, country club roots were showing. Some of the plaintiffs in this case were U.S. citizens. Some of their stops have been violent and they have not been promptly let go. People have been detained for extended periods. Kavanaugh is in an ivory tower, divorced from reality.

There was an extensive record from the lower federal court showing both the violence of ICE and the fact that Latino-looking U.S. citizens have been wrongly held and detained for far more than “brief” stops but Kavanaugh overlooked the fact-finding. The truth is that people who have attempted to show ICE agents proof of citizenship have been getting harassed and detained. Only in Kavanaugh’s mind are they promptly let go. The reality is an authoritarian goon squad manhandling and brutalizing people and flying them to faraway places.

Justice Sonia Sotomayor, along with Justices Kagan and Jackson, disagreed vehemently with the Vasquez Perdomo majority. Justice Sotomayor wrote:

“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. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”

What has become common is large roving patrols of unidentified, masked federal agents dressed in SWAT clothing, heavily armed with weapons displayed, swarming people of color and taking them to places unknown and not easily traceable. I would submit this is not the practice of a democratic society. Being stopped for looking Latino or speaking Spanish doesn’t square with the Fourth Amendment requirement that a police stop requires specific articulable facts.

This is too reminiscent of the practice of authoritarian societies. In 1930’s Germany, Jews were required to carry papers and wear a yellow star that identified them as Jewish. Now, in America, many Latinos are afraid to go outside unless they carry their immigration papers. Being able to move freely without government interference is part of what separates a free society from a police state.

The Trump regime is engaged in an unprecedented power grab. The Supreme Court majority is failing the American public by facilitating that power grab. They almost always give Trump his way no matter how outrageous the case. Instead of putting life into our Fourth Amendment, they are bleeding it while green lighting a racist practice.

This is another shameful moment for the Supreme Court. The Noem v Vasquez Perdomo decision hasn’t gotten the publicity it deserves. It is in the disgraceful tradition of worst Supreme Court decisions like Dred Scott, Korematsu and the Trump immunity decision.