A Blinkered Supreme Court Blocks Relief from Racial Profiling 

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.  

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. 

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. 

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