Dem
47
GOP
53
The Supreme Court decided to wade into the issue of ICE's indiscriminate roundups of Latinos in Los Angeles, by granting Donald Trump's request for an emergency stay and putting the lower court's temporary restraining order on hold while the administration appeals it. As a practical matter, this victory may be short-lived, as the TRO expires on September 24, when the lower court hears the plaintiff's motion for a preliminary injunction. Assuming that's granted, the appeal process (and requests for stays) will begin again. A judge's life is so glamorous—these days, that lifetime tenure must feel more like an anchor around the neck than a perk.
The majority opinion from the Supreme Court is one paragraph:
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The July 11, 2025 order entered by the United States District Court for the Central District of California, case No. 2:25-cv-5605, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Associate Justice Brett Kavanaugh wrote a 10-page opinion concurring in the stay decision, but no other Justice joined it. And the majority's decision is not a ruling on the merits. So, a solitary concurrence has even less significance in this context. Nevertheless, Kavanaugh not only addresses the merits (albeit in a very superficial way) but he also deliberately creates an impression that he is speaking for the majority, and all but directs Judge Maame Ewusi-Mensah Frimpong to deny any further requests for injunctive relief. News flash: She can ignore him. Unfortunately, the media has latched onto Kavanaugh's implied claim that the majority's stay decision means that it believes the defendants have the stronger case. Perhaps. But it's important to remember that a TRO is issued at the very early stages of a case, so it's especially irresponsible of him to essentially say that his brief musings will be the last word on the subject.
Even though it carries little weight, Kavanaugh's concurrence is nonetheless stunning in its casual shift to a "show your papers" requirement for people of a certain ethnicity. Kavanaugh begrudgingly admits that the Fourth Amendment prohibits racial profiling by itself, but says it can be a "relevant factor" along with any other stereotypes based on race. And if there are enough of them, he claims, they add up to the "totality of the circumstances" that allow random people to be snatched off the streets by armed and masked federal agents. He quotes the law that requires an immigration officer to have "reasonable suspicion, based on specific, articulable facts, that the person being questioned" is in the U.S. illegally. But according to Kavanaugh, "specific, articulable facts" give way if there are enough more general factors—and those words "specific" and "articulable" never appear again in his opinion. For example, Kavanaugh, who can't be bothered to cite the record, or refer to the actual facts of this case, claims that there are "2 million illegal immigrants" in Los Angeles. Many of them "come from Mexico or Central America and do not speak much English." They gather in "certain locations" and look for work in fields like construction and landscaping.
Well, those general factors also describe many people who are here lawfully, which is why the law requires "specific and articulable facts" before one can be arrested. But Kavanaugh dismisses such concerns: "as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States." Hear that everyone? If you are brown and speak Spanish, you better keep your papers on you, because the rules for you are different than for someone with lighter skin. At the very least, think twice before hanging around a Home Depot speaking Spanish and not carrying papers to prove your citizenship. This turns the Fourth Amendment completely on its head. Basically, if you share certain characteristics with people who are not here legally, you should expect to be stopped and questioned, and it's up to you to prove that you have not violated any laws. Sherrilyn Ifill took Kavanaugh to task for his rewriting Fourth Amendment jurisprudence and his whitewashing of the facts of the case.
Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson, and reminded us, again, of the majority's abuse of the shadow docket. Regular immigration enforcement is not an "emergency" justifying the Court's intervention here, more than any other law enforcement action. And the harm that has been done when ICE snatches up people erroneously far outweighs any delay in enforcement. Kavanaugh fails to explain how requiring BICE (it's the Bureau of Immigration and Customs Enforcement, incidentally) to adhere to the Fourth Amendment or to have specific and articulable information about a suspect before sweeping them up compromises their ability to enforce the law. Those pesky constitutional requirements are there precisely to curtail law enforcement's power in order to protect individual liberty.
The one silver lining—besides the fact that it's not a foregone conclusion that the plaintiffs will lose on the merits—is that Kavanaugh agrees that excessive force during these raids would violate the Fourth Amendment. He argues it's not a part of this case, which allows him to conveniently ignore the facts of these brutal operations, but in actuality, the way these raids are carried out is evidence of their indiscriminate nature and further supports enjoining the unlawful actions. But whenever inconvenient facts don't fit his narrative and desired outcome, Kavanaugh simply ignores them. (L)