The Little-Discussed Reason Brett Kavanaugh Is Comfortable Greenlighting Racial Profiling

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Justice Brett Kavanaugh’s concurrence in the major racial profiling case that was decided on the Supreme Court’s shadow docket last week, Noem v. Vasquez Perdomo^[2], is wrong on the facts. It’s also wrong on the law, and he writes like a man who knows that he’s never going to be stopped by law enforcement for the color of his skin or the quality of his English. With the stroke of his pen, Kavanaugh justifies expanding what professor Aziz Huq has characterized as “the prerogative state^[3]”—a legal regime that targets vulnerable outsiders—to sweep literally millions of lawful residents and U.S. citizens into Immigration and Customs Enforcement’s ever-increasing dragnet. Kavanaugh does this without breaking a sweat, because the prerogative state will never come for him. On this week’s Amicus^[4] podcast, Dahlia Lithwick explored this tectonic shift in the immigration landscape with Ahilan Arulanantham^[5], a longtime human rights lawyer and co-faculty director of the Center for Immigration Law and Policy at UCLA. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: Justice Kavanaugh, in his concurrence of one, takes the Trump administration’s word for it that 1 in every 10 residents of LA is an “undocumented immigrant.” He cites no number for this. Where is he getting this? ^[6]

Ahilan Arulanantham: This part is complicated. Kavanaugh says, “It’s just common sense,” that of course undocumented people will be more likely to do this or that. But there just isn’t statistical evidence on how many undocumented people work in car washes or work as day laborers. I’ve had clients who worked as day laborers and other work sites, there are citizens working alongside undocumented people in various jobs. It’s not a caste system where only undocumented people do some things and only documented people or citizens do others. There is a large population of undocumented people in Los Angeles County, something like 1 million out of more than 10 million people in Los Angeles County. I know undocumented lawyers, I know undocumented doctors, there are undocumented accountants. More than half of the undocumented population has lived here for more than 10 years. There are tens of thousands of undocumented university students in higher education throughout the country, so you can’t make this kind of generalization as a justification for engaging in arrest.

And just to reiterate, we have factual findings in this case. This is what a civil rights lawyer does—constructs a meticulous record in order to say, “Judge, this is happening.” The judge says it’s happening, the 9^th Circuit says it’s happening, but Brett Kavanaugh has some feelings. And his feelings are clear in his breezy characterization of what an encounter with a roving ICE patrol looks like. This is where he moves from ignoring facts to just sort of making up his sense of the world. He writes: “Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.” 

Justice Kavanaugh’s concurrence argues force is not part of this case, but that doesn’t make any sense. The record describes what is part of the case, and if the record shows violations, then the court has a duty to enjoin that. Factual findings, as you say, are made by the district court. They’re reviewable only for clear error. If you’re an appellate court, you’re only allowed to reverse a factual finding if the factual finding is clearly erroneous—that’s even on regular review, not on this emergency review. On emergency review, SCOTUS is supposed to be even more deferential to the courts below.

The Supreme Court sits farthest from all of the facts, and is not supposed to go second guessing what multiple courts have done. But that’s just not true anymore. Certainly in immigration cases and a set of other cases, the Supreme Court’s majority is happy to second guess and rewrite the facts in cases, including on the shadow docket.

The fast and looseness of Justice Kavanaugh’s application of standing in his concurrence is also a potential game changer. It sounds abstract, and standing has become very malleable for the Roberts court supermajority, but can you explain what happened here?  

Yes. I once heard a civil rights lawyer, who had done a lot of voting rights litigation and other kinds of immigrants rights litigation, say, “Standing is only for brown people.” The reason why Justice Kavanaugh would find no standing is this 1983 case, Los Angeles v. Lyons^[7], which is about the LAPD’s use of choke holds. The LAPD was stopping Black motorists in what were quite clearly recognized as racially discriminatory traffic stops. They would stop people for driving while Black, and while they could just take the driver’s license and ask for proof of registration and insurance, instead, they were putting people into chokeholds. They killed some people that way, and nearly killed other people. So one individual filed a lawsuit. This had happened to him and he argued that it was potentially going to kill him if it happened again. The Supreme Court said he couldn’t establish standing because he could not show that it was likely to happen to him again. Among the reasons the Supreme Court gave was the claim that you have to actually violate a traffic law to be pulled over. This is obviously implausible. Many Black motorists at the time would have told you that’s not true, and that they were being pulled over for nothing. But that was the Supreme Court’s logic.

If you have a repeated pattern, then obviously it doesn’t make any sense that you could have no standing, right? If you’ve been stopped illegally multiple times and the government has a policy of stopping people like you because you work in a car wash, or you go to a Home Depot, and you fit this other description, you’re Latino, you speak Spanish? Obviously you should be able to challenge that if it’s happened to you multiple times, and they have a policy, which you know is going to cause this to happen again. It feels like that surely should be challengeable and it’s outside of Lyons.

Justice Kavanaugh doesn’t say anything about either of these. He doesn’t explain why Lyons would apply in a situation where people are not breaking the law when they’re getting subjected to these stops, and he also doesn’t explain how it could be true as applied to somebody like the second plaintiff, who I believe was stopped four times at his car wash. The same car wash was raided repeatedly. Obviously there’s a policy, there are numerous policy statements where they say we’re doing this as a matter of policy! Whereas, LAPD was not saying they were categorically pulling over Black motorists for no reason. So there are a lot of ways this is different from Lyons. 

It’s hard not to imagine that this order and this concurrence is the Supreme Court effectively greenlighting racial profiling as part of the basis for reasonable suspicion. It’s hard to imagine a world in which these roving ICE officers are not now substantially more comfortable saying, “We’re just using race and language and where you’re standing as the basis for this stop.” This is the paradox of the shadow docket—the court said nothing of the sort, but we don’t know what the law is. 

This is why I strongly believe that the shadow docket is not law. Law is based on reasons, and you have to give reasons. They don’t have to be long; how long they are depends on what you’re asking for. If it’s a motion for extension of time, for example, it’s almost nothing. But for a decision of this consequence, there have to be five justices who explain why they are doing it.

It’s hard for lawyers to accept this, but we have to accept that we’re now living in a regime which is literally lawless, in the sense that we’re getting these edicts like a king handed down from the Supreme Court, that allow the Trump administration to do what it wants in these cases without law.

We had professor Aziz Huq on the show to talk about Ernst Fraenkel’s “dual state” theory and what happens when you have two operating legal systems—the normative state and the prerogative state. The prerogative state is ever-growing. The president just gets to do what he wants, and the Supreme Court is expanding the sphere of people who get swept into that kind of thinking. The plaintiffs in this case are U.S. citizens. This isn’t just about immigration, this is about labor, and this is about how work happens in Southern California. It’s about this huge growth in the class of people for whom the law, as you and I understand it, just doesn’t apply. That only goes in one direction. That eventually sweeps in everyone. When you say the shadow docket isn’t law and there is no law here, there will still be a bunch of judges trying to understand what the law is, and I assume a bunch of lawyers too. 

I think Aziz’s frame is quite an apt one for thinking about what’s happening, at least in the immigration cases. This move right here extends the prerogative state to people of Hispanic appearance or Latino appearance and who are speaking Spanish, whatever that means. It certainly encompasses me if I’m dressed the wrong way and going to play soccer as I do in parks in Los Angeles, even though I’m not in any way Latino in heritage.

So we’re talking about more than half the people in the Southern California region now who are subject to this different regime, that’s not one based on the normative rules that apply to others.

To address your question about what do lawyers do? What’s the law? What laws do court judges apply? The Supreme Court has suggested its opinions, even if on the shadow docket, are to be treated not as controlling, but informative. That’s what they say. Informative in like cases. But this is not an opinion, in Noem v. Vasquez-Perdomo, it’s only one justice talking. Presumably, if we’re doing law, if the others agreed with him, then they would’ve signed it. So then presumably this is not the law as to the subjects that are addressed, but then what is? Nobody knows. Kavanaugh’s concurrence is obviously contrary to the preexisting doctrine in this area in so many different ways, so there’s no good answer to that question. The answer to that question is that you have to guess, because this is not a law-based regime we’re living under in this context now. There isn’t a simple answer to the question when you have life under a lawless regime, which is what we’re living under now.

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