Transcript:In what may be its most reactionary ruling since Plessy v. Ferguson, the Supreme Court decided on Sept. 8 to allow the Trump administration and Immigration and Customs Enforcement (ICE) to resume overt racial profiling in immigration raids in Los Angeles. The raids, which began in June under the title of Operation At Large, have resulted in some 5,000 arrests. The order was handed down in the case of Noem v. Perdomo on the court’s emergency, or “shadow,” docket, which consists of cases decided on an expedited basis . without comprehensive briefing and without oral arguments . outside of the normal “merits docket.” The order lifts a lower-court injunction that had barred the administration from detaining suspected undocumented immigrants based solely on their ethnicity, language, geographic location, and occupations. Like most shadow docket rulings, the Perdomo order is bare-bones, comprising a single paragraph that fails to explain the court’s rationale for its decision. Nonetheless, it sends a clear message: If you are Latino, you’d better start carrying your identification papers with you . and they had better be in order. Otherwise, you will be subject to detention, and you might just find yourself on a deportation flight to El Salvador, South Sudan, or Uganda. The Perdomo litigation originated with a lawsuit filed on behalf of a group of immigration advocacy organizations and five individuals, including two US citizens who contend they were detained by ICE during Operation At Large in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures. On July 11, Los Angeles District Court Judge Maame E. Frimpong issued a temporary restraining order against the administration, finding that a “mountain of evidence” supported the plaintiffs’ claims that “roving patrols” of masked federal agents were conducting indiscriminate and sometimes violent dragnet-style immigration raids of workplaces and communities. The court’s quick overturning of Frimpong’s TRO comes as no surprise. Although the court has a long history of entertaining emergency appeals that bypass the normal appeals process . such as last-minute requests for stays of execution in death penalty cases . no president has relied on the shadow docket more than Donald Trump. According to Georgetown University law professor and shadow docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times. By comparison, the George W. Bush and Obama administrations filed a combined total of eight emergency relief requests over a 16-year period while the Biden administration filed 19 applications across four years. During its recently completed 2024-25 term, the court’s shadow docket exploded to more than 100 cases, fueled by the second Trump administration’s authoritarian power grab. In addition to Perdomo, the court has issued pro-Trump shadow docket orders permitting noncitizens to be deported to third-party countries with histories of egregious human rights violations. barring transgender people from serving in the military. withholding 65 million dollars in teacher training grants to states that include diversity, equity, and inclusion initiatives in their operations and curriculums. and endorsing the Department of Government Efficiency’s access to Social Security Administration records, to cite just a few instances. And while shadow docket decisions are technically “interim” in nature . operating to remand cases to the lower courts for additional proceedings and leaving space for a possible return to the Supreme Court . they have enduring practical consequences. Unless and until the Supreme Court takes up the Perdomo case again, ICE will be free to ramp up its roving masked raids in Los Angeles and other cities like Chicago, Baltimore, and Washington, D. C. There are no longer any safe zones. Of the high court’s six Republican ideologues, only Brett Kavanaugh explained his reasoning in Perdomo. In a poorly crafted opinion filled with misstatements of fact and law, Kavanaugh cited provisions in the Immigration and Nationality Act and a 1975 Supreme Court case (United States v. Brignoni-Ponce) that authorize immigration agents to briefly detain and question individuals if they have a “reasonable suspicion” (less than probable cause but more than a hunch) that the person being questioned is an alien illegally in the country. From there, however, Kavanaugh dropped the proverbial ball by remarking, without any citations to the trial court’s evidentiary record:The Government estimates that at least 15 million people are in the United States illegally. Many millions illegally entered (or illegally overstayed) just in the last few years. Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10% of the people in the Los Angeles region are illegally in the United States . meaning about 2 million illegal immigrants out of a total population of 20 million. Not surprisingly given those extraordinary numbers, US immigration officers have prioritized immigration enforcement in the Los Angeles area. 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 US citizen or otherwise lawfully in the United States, they promptly let the individual go. If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal. Given what he took for granted as the outsized illegal alien population in greater Los Angeles, Kavanaugh reasoned that it is “common sense” (his words, trust me) for ICE agents to detain any Latinos who fit the government’s criteria of suspicion based on their race, language, or employment in low wage jobs. In a blistering 21-page dissent, Justice Sonia Sotomayor, joined by fellow Democrats Elena Kaga and Ketanji Brown Jackson, took Kavanaugh to school, instructing the former Yale frat boy that the reasonable suspicion standard requires:“… an individualized suspicion that a particular citizen was engaged in a particular crime” beyond just a “demographic profile...”The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that ‘describe[s] a very large category of presumably innocent’ people… As the District Court correctly held, the four factors [the administration relies on] . 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. Sotomayor also educated Kavanaugh on the harsh on-the-ground realities of Operation At Large, noting several examples from the trial court record of violence and intimidation. In the LA suburb of Glendale, for instance:…nearly a dozen masked agents with guns “jumped out of… cars” at a Home Depot, and began “chasing and tackl[ing] Latino day laborers without “identify[ing] themselves as ICE or police, ask[ing] questions, or say[ing] anything else… In downtown Los Angeles, agents “jumped out of a van, rushed up to [a tamale vendor], surrounded him, and handled him violently,” all “[w]ithout asking… any questions. In still another Home Depot encounter drawn from the evidentiary record, masked agents wearing bulletproof vests got out of a car and tear-gassed a crowd that had gathered to witness a raid. Far from being polite and respectful, Sotomayor continued, Operation At Large has sparked “panic and fear” across Los Angeles and its surrounding areas. “Countless people in the Los Angeles area,” she observed, “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.”The Fourth Amendment, she reminded her Republican colleagues, “protects every individual’s constitutional right to be free from arbitrary interference by law officers.” Sadly, she concluded, after the Perdomo ruling, “that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.”As a Supreme Court justice constrained by the need for collegiality on the bench, Sotomayor stopped short of denouncing Kavanaugh and the court’s Republicans as enablers of racism. There is no reason for the rest of us to feel so reserved. Bill Blum is a former California administrative law judge. As an attorney prior to becoming a judge, he was one of the state's best-known death-penalty litigators. He is also an award-winning writer and legal journalist, and the author of three popular legal thrillers published by Penguin/Putnam as well as scores of features and book reviews published in a broad array of magazines and newspapers. His non-fiction work has appeared in a wide variety of publications, ranging from Common Dreams and The Nation to the Los Angeles Times, the L. A. Weekly and Los Angeles Magazine.Our Analysis:The Supreme Court's Shadow: Unveiling the True Culprits Behind ICE's Racial ProfilingIn the labyrinth of American governance and jurisprudence, the Supreme Court's decision on September 8 to greenlight the Trump administration's resumption of racial profiling in immigration raids. affecting thousands in Los Angeles. marks a pivotal yet disturbing moment. The narrative woven around Noem v. Perdomo casts long shadows over the principles of justice, equality, and the very constitution it seeks to interpret. This analysis unpacks the institutional power dynamics, decision-makers, and possible misdirections in responsibility, offering a clear-eyed view beyond the surface-level blame game.Institutional Power and Decision-MakingWho Holds the Power?The Supreme Court, with its constitutional mandate, holds the apex position in the interpretation of law, effectively wielding the power to shape the enforcement of immigration policies. However, its decisions are not made in a vacuum. They reflect the interplay between the executive branch, in this case, the Trump administration, and legislative frameworks established by Congress. The use of the court's emergency, or "shadow," docket to expedite decisions without comprehensive briefing or oral arguments further centralizes this power, limiting broader judicial and public scrutiny.The Decision-MakersThe immediate decision to allow ICE to resume racially profiled raids was made by the Supreme Court, specifically its conservative majority. However, the operational and strategic decisions. how, where, and against whom these raids are conducted. fall squarely within the purview of the Department of Homeland Security and ICE, under the policy direction of the Trump administration. It is this symbiotic relationship between the court's rulings and the executive's enforcement strategies that brings us to the current predicament.Misdirection of Responsibility?The article's framing potentially misdirects responsibility towards the Supreme Court as the sole architect of this policy outcome. While the court's decision is indeed central to the issue, it is the Trump administration that initiated the policy, sought the court's intervention to overturn lower court injunctions, and ultimately carries out the operations through ICE. The Supreme Court does not operate in isolation. its decisions are responses to cases brought before it, influenced by the legal arguments and the socio-political context shaped by the executive and legislative branches.The Role of the Shadow DocketThe shadow docket's growing use under the Trump administration, as highlighted by Professor Steve Vladeck, underscores a strategic maneuvering to achieve policy aims outside the traditional, more transparent judicial process. This trend, especially stark in comparison with previous administrations, suggests a deliberate effort to leverage the Supreme Court's emergency procedures for substantive policy changes, often bypassing broader legal and public scrutiny.Kavanaugh's Opinion and the DissentJustice Brett Kavanaugh's solo explanation, and the dissent led by Justice Sonia Sotomayor, illuminate the deep ideological divide within the court. Kavanaugh's reliance on broad generalizations and "common sense" without robust evidence, as critiqued in the dissent, raises serious questions about the judicial rationale underpinning such a consequential decision. The dissent not only challenges the majority's legal reasoning but also brings to light the real-world implications of the court's decision on communities, particularly those of Latino descent in Los Angeles.Conclusion: Beyond the BenchAs we dissect the layers of responsibility and power dynamics at play, it becomes evident that the Supreme Court's ruling is but a reflection of broader systemic issues within American governance. The Trump administration's policies, the Supreme Court's shadow docket, and the underlying legislative frameworks collectively contribute to the outcome. Criticism, therefore, must be directed not solely at the court but at the entire ecosystem of decision-making that enables and perpetuates such policies.In the final analysis, the responsibility for racially profiled immigration raids does not rest with the Supreme Court alone. It is a shared burden, one that encompasses the Trump administration's policy directives, ICE's enforcement tactics, and a judicial process that allows for critical decisions to be made away from the public eye. It is within this confluence of power and policy that the roots of accountability must be sought.s
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