Supreme Court Allows Racial Profiling

Professor Bennett Gershman criticizes the Supreme Court’s use of its emergency docket to uphold Trump-era immigration practices that permit racial profiling. He concludes: “Sadly, the court continues to supplicate to an authoritarian president whose regime continues to destroy constitutional values and the rule of law.”

It used to be, when the Supreme Court was a respected court, that the court would grant a stay when it really was necessary, such as delaying a prisoner’s execution to study the case. Today, the court issues a stay under its emergency docket in virtually any case whenever the Trump administration asks for it.

So it was last week that the Court stayed the ruling of a federal judge in Los Angeles that enjoined immigration officials from arbitrarily seizing Hispanic or Latino persons in Los Angeles suspected of being in the United States illegally. The seizures were based on four factors: presence at a particular location, such as a bus stop or car wash; the type of work involved; speaking Spanish or speaking English with an accent; and race or ethnicity. The government did not deny the seizures were based on these four factors.

Under the Fourth Amendment police are allowed to forcibly interfere with a person’s liberty based on a reasonable suspicion that the person is committing or about to commit a crime. The suspicion must be based on individualized factors and not group stereotypes. The federal court issued its injunction because the immigration seizures violated the Fourth Amendment.

The Supreme Court did not explain its reasons for issuing the emergency order overturning the injunction. The task of trying to justify what appears to be a misuse of the Court’s emergency docket was delegated to Justice Brett Kavanaugh, and his effort was not convincing.

Without citing any authorities for any of his numbers, Kavanaugh began by echoing the government’s estimates of illegal immigration: 15 million illegal immigrants in the United States, and 2 million of them in the Los Angeles area.

Kavanaugh quoted the claims by Trump’s anti-immigration officials that the persons seized work in day jobs “that are attractive to illegal immigrants who do not speak English,” such as construction, landscaping, agriculture, and car washes. Kavanaugh relied on the representation of immigration officials that if they learn the person is a U.S. citizen, “they promptly let the individual go.”

Although Kavanaugh stated that ethnicity alone would not be enough to furnish reasonable suspicion to seize persons, he said race “can be a relevant factor.” As for seizures of Hispanic or Latino persons lawfully in the country, Kavanaugh was confident that “questioning [these persons] is typically brief,” and then choosing his words carefully, said that “those individuals may promptly go free after making clear they are legally in the U.S.”

That they “may” promptly go free may be correct; but the question is whether the immigration officials will allow them to go free? Kavanaugh did not mention the numerous examples submitted by the plaintiffs to the federal court of “roving patrols of armed and masked immigration agents jumping out of cars at local car washes, Home Depots, tow yards, bus stops, farms, recycling centers, churches and parks,” “tackling people before asking questions, and with guns drawn grabbing people and pushing them up against walls and fences,” “demanding identification, and even when proper identification is given, refusing to accept it and let them go.”

Kavanaugh added that if an official seizes a person unlawfully because he looks Latino, speak Spanish, and appears to work in a low paying job, “remedies should be available.” Yes, remedies should be available. Is that a principled argument for judicial decision-making when constitutional rights are violated?

Kavanaugh concluded that the “proper role of the judiciary” is to “ensure that the Executive Branch acts within the confines of the Constitution,” and observed that the court would be stepping outside its proper role “to restrict reasonable Executive Branch enforcement of the immigration laws.” But Kavanaugh begs the question: Is the Trump administration’s enforcement of the immigration laws “reasonable”?

The dissenters—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—told it like it is. “The very essence of the government’s pattern of conduct is to seize first and ask questions later.” As noted above, the record in the federal district court strongly supports that claim. Trump’s armed invasion into the greater Los Angeles area, the dissent wrote, where nearly fifty percent of the Central District identify as Hispanic or Latino, “has caused panic and fear.”

The federal court heard testimony from persons struggling to make ends meet but afraid to go to work, reluctant to attend school meetings and to pick up their children from school. The dissent cited statements from Trump’s anti-immigration officials “to just go out there and arrest illegal aliens,” “target Home Depot and 7-11 stores,” “turn the creativity knob up to 11,” “push the envelope,” and “if it involves handcuffs on wrists it’s probably worth pursuing.”

Responding to the government’s plea that immigration agents would be “chilled” and “deterred” from stopping suspects if the injunction was not stayed, the dissent observed that no real chill seemed likely. Kristi Noem, Secretary of the Department of Homeland Security, called the District Judge an “idiot,” and the Chief of Border Protection in Los Angeles encouraged his agents to “go even harder” and continue efforts to “chase, handcuff, and deport” people at car washes and other locations.

In balancing the government’s interest against the public’s interest, the Trump Justices appear to disregard the government’s abuses and violations of immigration laws, discount the rulings of federal judges who have recorded from the testimony of victims the abuses and violations of their constitutional rights and seek to protect these vulnerable people from lawless government actions.

Sadly, the court continues to supplicate to an authoritarian president whose regime continues to destroy constitutional values and the rule of law.
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As these Justices sit in their comfortable chambers and ruminate in the shadow of their emergency docket, one wonders whether they ever think about the fate of a person who looks a certain way, speaks a certain way, and works at a certain job that pays very little. Are these justices aware that individuals will lose their freedom because they possess those attributes? Do these Justices even care?