Racial Profiling is Back, Baby!

Written By Leeja Miller

Further Reading:

 

The Shadow Docket by Stephen Vladeck

 

Sources:

Transcript:

This week, in a case pulled from the Supreme Court’s infamous shadow docket, the high court ruled that, actually, racial profiling is A-OK! And ICE can continue using broad, sweeping, race-based pretext to apprehend people on the streets of LA and, by extension, everywhere else moving forward. Today we’re discussing the case, the supreme court shadow docket, and what this means for your rights against unreasonable searches and seizures by a tyrannical government. Spoiler: it’s not great!!!!

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In Noem v. Vasquez Perdomo, in response to the ongoing raids in Los Angeles, a class of individuals and associations filed a lawsuit against Kristi Noem and other government officials in their official capacity alleging that the government violated the 4th Amendment by quote “adopting a policy, pattern, or practice of stopping individuals without reasonable suspicion based on nothing but broad profiles including apparent race and ethnicity.” Specifically they allege ICE officers are using race or ethnicity, speaking Spanish or English with an accent, presence in a particular location like a Home Depot parking lot, and the type of work a person does, specifically manual labor, as pretext for stopping people in immigration raids. The plaintiffs argue these factors cannot support reasonable suspicion that the individuals are in the US illegally because it’s a violation of their 4th Amendment rights. They sought a temporary restraining order to stop the government from continuing their raids in LA while the case played out in court. That order was granted and then got appealed up to the Supreme Court’s shadow docket. And on Monday the court voted to stay the order, meaning the temporary restraining order goes away and ICE can continue its raids which allegedly violate the fourth amendment. In granting the stay, the Supreme Court provided zero context, they didn’t write an opinion or official statement as to why they were granting the stay. Separately, as part of the majority, Kavanaugh wrote his own concurring opinion, but that is not the official opinion of the court. As far as this case goes, the court did not feel the decision to allow racial profiling on the streets of LA warranted further explanation.

Okay so what does the 4th Amendment say on this, what are your rights? So the fourth amendment protects your right to be free from unreasonable searches and seizures by the government. Which begs the question “what is a reasonable search or seizure”, right? That’s what a lot of the Supreme Court precedent on the 4th Amendment deals with, what is reasonable in specific scenarios. One of those scenarios is getting stopped by the police. Now there are certain rules that apply when stopped in your vehicle vs when just stopped while walking around. A lot of the caselaw around the latter refers to stop and frisks, the usually blatantly racist practice of cops stopping and frisking people because they look black and therefore suspicious. The Supreme Court has dealt with that and said hey that’s not a reasonable search, you have to have reasonable suspicion that the person is violating the law. I’ll read directly from Sotomayor’s dissent in this Noem v. Vasquez Perdomo case for the law as it applies to these immigration raids, because Kavanaugh didn’t even bother to lay out the standard in his concurrence. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person, and the Fourth Amendment requires that seizure be reasonable.” “officers may stop an individual “only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the individual “may be illegally in the country.” This requires “more than an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.” “Critically, a set of facts cannot constitute reasonable suspicion if it “describe[s] a very large category of presumably innocent” people.” For example, the court has already found that Mexican ancestry cannot alone constitute reasonable suspicion because there are a lot of people in the US legally that have Mexican ancestry. And just the fact of being in an alley in a neighborhood with a lot of drug users is not sufficient to give reasonable suspicion that anyone in that alley is a drug user, because any number of people in the neighborhood could be passing through that alley. Indeed the dissent cites to a case from 2020, very recently, that reiterated “the need for “an individualized suspicion that a particular [person] was engaged in a particular crime” beyond just a “demographic profile.”” So that’s the 4th Amendment standard. Yes, reasonable suspicion is a lower standard than probable cause, but it still requires there to be individual facts, specific to the individual being targeted, that give rise to a reasonable suspicion that they are in the country illegally.

Kavanaugh’s concurrence doesn’t even bother addressing any of this. His concurrence acknowledges the immigration raids in LA, but seemed to indicate zero concern about ensuring the legality of such raids or acknowledging the breadth of the public backlash. He just says well I mean there are SO many immigrants there! Of COURSE they would conduct enforcement measures there. They conduct just basic routine innocent little investigative stops and the SECOND they learn that the person they stopped is a US citizen or otherwise legally here, they PROMPTLY let the individual go. That’s ALL that’s happening and if you think otherwise you’re being HYSTERICAL why are you being so weird? Governmental gaslighting at its finest. And make no mistake lawyers are master gaslighters. Not ME I would never do that but anecdotally….

So typically when the SUpreme Court agrees to grant an emergency stay like this, where the case is still ongoing they are just appealing a mid-case decision by the lower court, it is typically supreme court practice to avoid overstepping into the case as it plays out below. Typically it should actually be very difficult to get the Supreme Court to step in and overrule a lower court, as they did here, in the middle of the case. So there are a bunch of factors they consider when determining whether or not to do this. Importantly, they must weigh the harms and benefits to each party in making their determination–which party would be more irreparably harmed and is it necessary for the court to step in to protect against that harm?

Kavanaugh does this balancing of the harms and equities between whether to grant the stay or not and he says well obviously this factor tips in favor of the government. Think of the detriment to the American people if ICE is barred from enforcing Congressionally mandated laws!!! Ignore the fact that nothing in the order prevents ICE from continuing with the raids, they just have to do so without the whole racial profiling thing. But according to Kavanaugh that is IRREPARABLE HARM!!! And the only interests being invaded here on the other side is in the interest of those damn illegals trying to enter our country and not get caught, that’s quote “not an especially weighty legal interest.” He goes on to say “Sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the united states to escape poverty.” Which pissed me off, the “not all, but many” aside. In legal writing especially when it comes to Supreme Court opinions, usually the language is very deliberate, as it is here. He said many. Many come here to escape poverty. That could have been the sentence but he added Many parentheses not all but many. It’s a wink and a nod to the bigots and xenophobes, I see you guys just let me deal with this first, let me just assuage the libs that I’m definitely not completely in your pocket.

And he does acknowledge oh yeah well I guess there is also the interests of the people here legally who could get rounded up in the dragnet but quote “the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to immigration officers that they are US citizens or otherwise legally in the United States.” Just says it as fact, despite numerous instances, many cited to in the record of this very case, of people being arrested or held far longer than the “brief” questioning he describes. Who have their papers who say here are my papers and get arrested anyway. The willful and deliberate blindness to the reality of what is happening on the ground in this country is fascist gaslighting. It is the government, through the words of a man who is in with the ruling elite, who was put in place by them, gaslighting us and telling us something different is happening than what our eyes are seeing. Than what we or our neighbors or family members are actively experiencing under this regime.

So needless to say the Kavanaugh concurrence is infuriating and like listen. I have been reading Supreme Court cases for nearly a decade at this point. I have read hundreds. The opinions and concurrences coming out of this conservative supreme court read differently. It’s hard to put my finger on it but in part there’s a sense of hostility, towards the liberal justices, towards the lower court judges, towards the ongoing questioning of this regime and its tactics. Most of the time it’s not open hostility, it’s woven into legalese and banal sounding passages but it’s there and it’s palpable and it’s not normal. And there’s also a willful blindness to precedent and to the reality of what’s happening in this country on the ground every day, there’s a willingness to completely ignore things, including facts clearly established on the record, in a way that is disconcerting, to say the least. And they know it’s happening, they watch the news, they get amicus briefs detailing exactly what’s going on, they have full access to the whole record. It’s willful. Because it’s also the job of a lawyer and a judge, a good one anyway, to address all factors in an argument, for or against the stance you’re taking. You can’t just say here’s what I’m arguing and here’s all the reasons I’m right. You have to say here’s what I’m arguing, here’s all the reasons I’m right, here’s all the ways the opposition says I’m wrong and why THEY’RE wrong or it doesn’t matter. And then provide actual plausible reasoning for why that is. In this Supreme Court they are saying here’s all the reasons I’m right, and then a throw away line or two giving weak, unsupported reasoning for why the opposition is wrong or doesn’t matter, if they even address it at all. They are not, in good faith, genuinely engaging with their liberal colleagues or the participants in litigation whom they disagree with. They are making up their minds and not bothering to tell us exactly why they’re right. And with the shadow docket they’re often not bothering to give us any argument at all.

Justice Sotomayor’s dissent, which Justices Kagan and Jackson joined, lays a lot of this out, and acknowledges reality in a way Brett Kavanaugh refuses to. Her opening paragraph says “In early June, the Government launched immigration enforcement raids across Los Angeles and its surrounding counties. During the raids, teams of armed and masked agents pulled up to car washes, tow yards, farms, and parks and began seizing individuals on sight, often before asking a single question.” A reality that Kavanaugh didn’t even bother acknowledging or addressing. Like if you’re going to erode constitutional rights you should have to tell me why with your whole fucking chest.

Sotomayor then goes on to actually lay out the law, which Kavanaugh didn’t bother with. She concludes that the four factors the government is using to determine reasonable suspicion clearly go against Supreme Court precedent. “As the District Court correctly held, the four factors—apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work—are “no more indicative of illegal presence in the country than of legal presence.”” “Allowing the seizure of any Latino speaking Spanish at a car wash in Los Angeles tramples the constitutional requirement that officers “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.””

In fact there is so much precedent, so many important facts Kavanaugh didn’t even bother with considering, that I could spend a full hour-long plus episode going through just the concurrence and dissent in this case. She notes that Kavanaugh seemed fine with the government’s argument, which provided no citations, that well 10 percent of the population in the Central District of California is unlawfully present so these wide dragnets are necessary because anyone meeting these four factors has a high likelihood of being here illegally. Quote “Never mind that nearly 47 percent of the Central District’s population identifies as Hispanic or Latino. Never mind that over 37 percent of the population of Los Angeles County speaks Spanish at home, and over 55 percent speak a language other than English.” Basically, they are saying wow there are just SO many illegals here it makes sense to make these wide ranging presumptions and Sotomayor is saying bullshit that’s nothing compared to the number of total people, including those here legally who are Latino or speak Spanish or English with an accent. Your stats are bad.

Sotomayor also calls bullshit on Kavanaugh’s contention that it is actually the government that will suffer irreparable harm if this restraining order goes into effect. She notes that there is nothing stopping the government from continuing their raids, they just have to actually have reasonable suspicion outside of these four racist factors, and they can continue their raids. Moreover, the restraining order seems to have done nothing to actually restrain the regime. Sotomayor acknowledges the on the ground reality, something Kavanaugh willfully ignores, saying quote “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.’”9 The CBP Chief Patrol Agent in the Central District has stated that his division will “turn and burn” and “go even harder now,”10 and has posted videos on social media touting his agents’ continued efforts “[c]hasing, cuffing, [and] deporting” people at car washes. Accordingly, there is no reason to credit the Government’s assertion that it will suffer irreparable harm.”

She goes on to call Kavanaugh out, quote “The concurrence relegates the interests of U. S. citizens and individuals with legal status to a single sentence, positing that the Government will free these individuals as soon as they show they are legally in the United States. Ante, at 8 (opinion of KAVANAUGH, J.). That blinks reality. Two plaintiffs in this very case tried to explain that they are U. S. citizens; one was then pushed against a fence with his arms twisted behind his back, and the other was taken away from his job to a warehouse for further questioning. 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. … 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.” And as my own aside, there is nothing in this concurrence or the official court opinion which, again, there wasn’t one, to indicate whether this now applies to all police stops. Presumably, based on how this court has been treating its shadow docket decisions as binding precedent, it indicates that any cop can now use race or ethnicity, language spoken, the place you’re standing, and the job you work as pretext to stop you. And now it’s your job to prove they’re wrong. But I don’t know whether or not that’s the case because the Supreme Court provided zero guidance.

Sotomayor ends the opinion by addressing a general concern with the court’s newfound proclivity for issuing these types of weighty shadow docket orders without providing any reasoning. Quote “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.” Again, Kavanaugh’s concurrence is not the reasoning of the court, it is more like an aside, an opportunity for him to expound on his own thoughts, but they do not represent the official holding of the court. The official holding of the court was not explained. The stay was simply granted with no further comment. That provides zero guidance to lower courts which are in the middle of litigating the issue. They are then left to guess on what grounds the court made its decision, which is deeply problematic on so many levels. It renders the Supreme Court this temperamental overlord who simply gets to say hehe no wrong, guess again!! Every time it receives an appeal. That’s not how the Supreme Court is supposed to function. That is not the transparency required in a democratic society. And, as Sotomayor noted, it has become a growing issue especially since Trump took office in January.

Here’s a primer on the shadow docket, for a deeper dive I suggest Stephen Vladeck’s book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. In the description I’ve included a link to the book at bookshop dot org. Any purchases made using that link goes to support independent bookstores as well as this channel, so thank you! Let me know in the comments if you’d be interested in more book-focused episodes of this show in the future.

Ok, the Shadow Docket is sometimes called the “emergency docket” and sometimes the decisions they make from that docket truly are life or death–death penalty appeals often go to the court’s shadow docket. But, more mundanely, the shadow docket typically is where the court makes a ruling on a procedural matter, often on cases that are still actively moving through lower courts. So, for example, if a lower court issues a temporary injunction telling a party to stop doing something until the case moves through the court system, the enjoined party can appeal that temporary injunction, and the Supreme Court can decide to address that appeal and either uphold the injunction or overturn the injunction. The Brennan Center provides further explanation: quote “Supreme Court cases take one of two tracks: merits docket or shadow docket. Each term the Court decides some 60 to 70 cases on the merits docket. Before rendering a ruling in each one, the Court considers numerous briefs and holds oral argument. It then issues a decision with a lengthy opinion explaining its reasoning, often with concurrences and dissents. … Cases on the shadow docket, in contrast to those on the merits docket, typically do not receive extensive briefing or a hearing. The decisions are accompanied by little to no explanation and often lack clarity on which justices are in the majority or minority. They are sometimes released in the middle of the night, creating a sense of palace intrigue.

Indeed, law professor Stephen Vladeck noted in testimony before Congress, “Owing to their unpredictable timing, their lack of transparency, and their usual inscrutability, these rulings come both literally and figuratively in the shadows.”

Sometimes, shadow docket rulings are genuinely mundane, like setting a due date for a brief or something, but sometimes they can have really high stakes, not just the death penalty cases, but also cases involving reinstatement of a law after an injunction has been put in place. Another example, earlier this year the Supreme Court stopped an injunction which allowed for detained immigrants to be forcibly deported to Sudan where they had no ties and could face further detention, torture, or death. Or sometimes, decisions made on the shadow docket can imply that previous supreme court precedent no longer stands, but provide no explanation or clear statement. For example, a number of decisions made off the shadow docket this year have involved Trump’s ability to fire previously independent officials. Nearly 100 years of Supreme Court precedent, under what’s called “Humphreys Executor” has established that Congress can create bodies and entities outside the purview of the President, which the President does not have the right to hire or fire at his will. By ruling, without explanation, that Trump actually CAN, for example, fire members of the NLRB, the Supreme Court is implying that Humphreys Executor no longer applies. But by providing no explanation, they are not explicitly overruling that precedent, they are not providing guidance to lower courts on how to move forward, and they are not providing the transparency required of them for the public to understand why they are ruling the way that they are.

Some lower court judges are fighting back in clever ways, issuing rulings in line with Supreme Court precedent, the explicit precedent, saying that the high court didn’t say that the precedent no longer applies and provided no indication that it wouldn’t apply in this case, so we’re going to move forward as if it still does. The actions of these lower court judges are further supported by the fact that shadow docket rulings usually are NOT treated as precedent BECAUSE of the nature of the shadow docket–no full briefing, no oral argument, limited deliberation by the justices. That does not make a great setup for creating precedent and certainly should not be the means by which the court overrules 100 years of precedent. And yet when given the opportunity, the conservative justices have been chastising lower court judges who don’t take their unexplained shadow docket rulings as precedent in separate cases.

According to the Brennan Center quote “Today, the justices grant relief in contentious shadow docket cases twice as often as they did just a few years ago. The surge in issuing this relief has coincided with Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining the Court.

Put simply, the Court is making more significant decisions through the shadow docket while having reduced the robustness of the decision-making process.”

And this perverted use of the shadow docket system has real consequences for the parties in the cases, for judges deciding cases, for lawyers arguing cases, and for the public at large and the role of the Supreme Court in our government. The Brennan Center again, quote “Using the shadow docket for nonemergency but monumental decisions runs counter to the tenets of transparency and the rule of law. As many legal scholars have observed, the justices’ usual process of waiting for lower courts to establish facts and weigh in on cases, receiving full briefing, holding oral argument, and providing detailed explanations of their orders, is a key source of the Court’s legitimacy.

So, when the justices increasingly render decisions affecting more and more Americans in a manner that precipitously resolves constitutional or statutory questions with little to no reasoning given, they feed the perception that their rulings are predicated on political ideology rather than judicial principles.” But then of course Alito or Kavanaugh go give a speech at some dinner and whine about how they’re just human and calling it the shadow docket is unfair and all manner of blather trying to fix the court’s PR without actually making the real changes that would make people respect the word of the court again. The lack of faith in the Supreme Court as anything other than a far right shill trickles down to all the courts. Because even if there are valiant lower court judges standing up for the rule of law despite increased literal death threats against them, you don’t need to have a law degree to understand that none of it matters if it can all be appealed up to the highest court in the land which will hand an increasingly brutal dictatorial regime carte blanche to do whatever it wants, no matter what the law says. And now they’re doing so without even bothering to provide any public explanation about it. This, like so many other things today, is dramatically eroding the foundations of our democracy and of the pillars of this country that have been taken for granted until now, like faith in the entire judiciary. Of course there have been calls for court reform for years and abuses of the justice system, which is often tiered based on race and class, but even those injustices did not undermine faith in the functioning of the courts the way that 8 months of this Trump regime has. And every sign indicates that this court only intends on ramping up its use of the shadow docket to uphold the Trump regime at every possible opportunity.

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And if you liked this episode, you’ll like the one from Monday about Venezuela and Trump’s boat bombing that was probably a war crime!


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