Joseline Jean-Louis Hardrick: Suspicion in the shadows

The Supreme Court has once again redrawn the boundaries of our constitutional rights, not through a full opinion after arguments, but with a late-night order on its “shadow docket.”

In Noem v. Perdomo, the Court allowed immigration agents to consider race, language, and work status when deciding whom to stop in Los Angeles.

The 9th Circuit had upheld a lower court order blocking such stops, ruling that immigration agents could not detain people simply for looking Latino, speaking Spanish, waiting at job sites, or holding low-wage jobs.

The Supreme Court lifted that restriction, tilting the law toward enforcement and away from equal protection.

A standard bent by bias

In 1968, the Court created the “reasonable suspicion” standard in Terry v. Ohio. It was meant as a compromise, allowing police to act on less than probable cause while protecting civil liberties. But critics warned that suspicion is elastic and prone to bias. Who looks “suspicious” often depends on who is being watched.

Those warnings now ring true. Justice Brett Kavanaugh, concurring with the majority, wrote that while ethnicity alone cannot justify a stop, it “can be a relevant factor when considered along with other salient factors.” That formulation opens the door for immigration agents to use race, language, and class as part of the suspicion calculus.

Justice Sonia Sotomayor, in dissent, was blunt: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”

The shadow docket problem

The Court issued this ruling through its shadow docket, a process meant for emergencies but increasingly used to make weighty decisions without full hearings. Officially, such rulings are temporary. In practice, they bind lower courts.

This confusion even tripped up a veteran judge. In September, Senior U.S. District Judge William Young apologized after two Justices accused him of defying a “precedential” shadow docket ruling. He admitted he “simply did not understand” that emergency orders carried precedential weight. If a federal judge cannot be sure, how can the public?

A bitter irony

The decision also highlights a double standard. Last year, the Court struck down affirmative action, declaring race could not be considered in higher education admissions. Yet now the same Court permits race and language to be considered in stops and detentions. Race is off-limits when it opens the door to college, but acceptable when it opens the door to custody.

Why it matters

This ruling is not abstract. It affects families and communities every day. By expanding what constitutes “reasonable suspicion,” the Court risks normalizing profiling while obscuring its reasoning in the shadows.

Sotomayor’s dissent reminds us of what is at stake: freedom from government seizure based on who we are, not what we have done. That should be common sense.

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Joseline Jean-Louis Hardrick is a law professor and founder of Journey to Esquire®^[1]. She teaches Constitutional Law and Criminal Procedure, mentors future lawyers, and writes on justice, equity, and the evolving role of the courts. Her work focuses on making the law accessible and relevant to diverse communities.

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