Supreme Court Issues Dubious "Shadow Docket" Ruling Staying Injunction Against Racial Profiling in Immigration Enforcement

There is no majority opinion, so the reasoning is unclear. But Justice Kavanaugh's concurring opinion undercuts principle that government must abjure racial discrimination.

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Today, the Supreme Court issued a "shadow docket" ruling staying a district court decision that had enjoined ICE from engaging in racial and ethnic profiling in immigration enforcement in Los Angeles. The decision was apparently joined by the six conservative justices; the three liberals dissented. As is often the case with "emergency"/shadow docket rulings, there is no majority opinion. Thus, we cannot know for sure what the majority justices' reasoning was. We have only a concurring opinion by Justice Brett Kavanaugh. But that opinion has deeply problematic elements. Most importantly, it is fundamentally at odds with the principle that government must be "color-blind" and abjure racial discrimination.

The district court found extensive use of racial profiling by ICE in immigration enforcement in the LA area, and issued an injunction barring it. Justice Kavanaugh, however, contends that the profiling is not so bad, and does not necessarily violate the Fourth Amendment because,  while "apparent ethnicity alone cannot furnish reasonable suspicion," it could count as a "relevant factor when considered along with other salient factors."

But even if it is not the sole factor, its use still qualifies as racial or ethnic discrimination. And, at least in some cases, it will be a decisive factor, in the sense that some people will be detained based on their apparent ethnicity, who otherwise would not have been. Imagine if the use of race and ethnicity were permitted in other contexts, so long as it is not the "sole" factor. Government could engage in racial discrimination in hiring (so long, again, as other factors were permitted), voting rights, access to education, and more.

Moreover, in this case, race and ethnicity clearly were major factors in ICE decision-making, not just peripheral ones. That is evident from the fact that ICE arrests in Los Angeles County declined by 66 percent after the district court issued the injunction the Supreme Court stayed today.

In  SFFA v. Harvard the Supreme Court's 2022 ruling against racial preferences in university admissions, Chief Justice John Roberts wrote that "eliminating racial discrimination means eliminating all of it." If this is a sound constitutional principle - and it is - there cannot be an ad hoc exception for immigration enforcement, or for law enforcement generally. As Justice Sonia Sotomayor emphasizes in her dissent, joined by all three liberal justices, "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." Or at least that's true if the Constitution genuinely requires government to abjure racial and ethnic discrimination.

Today's case is under the Fourth Amendment, while SFFA v. Harvard was decided under the Equal Protection Clause of the Fourteenth. But it makes no sense to conclude that racial and ethnic discrimination is generally unconstitutional, yet also that its use is "reasonable" under the Fourth Amendment.

In assessing the desirability of staying the injunction Justice Kavanaugh also argues that illegal migrants have little or not legitimate interest in avoiding immigration detention, while citizens and legal residents are only slightly inconvenienced because "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." This ignores the reality that ICE has detained and otherwise abused numerous US citizens and legal residents for long periods of time. As the district court ruling and Justice Sotomayor's dissent describe, there are plenty of examples of this problem in the record of this very case. Moreover, even actual illegal migrants have a constitutional right to be free of racial discrimination. The relevant constitutional provisions aren't limited to citizens or to legal residents.

Justice Kavanaugh also argues that the plaintiffs in this case - including people victimized by earlier incidents of ICE profiling - lacked standing to seek an injunction against future racial profiling because they cannot prove that the profiling will recur. He cites City of Los Angeles v. Lyons, a 1983 Supreme Court decision in which a victim of a police chokehold was denied standing to seek an injunction against future such incidents. But, as Sotomayor notes, ICE has a systematic policy of racial and ethnic profiling that it seeks to continue on a large scale, at least in the LA area at issue in this case. That makes the situation fundamentally different from Lyons, where the court found there was no evidence that LA police had a systematic policy of using illegal chokeholds in situations like to affect the plaintiffs.

There are some other issues covered by Kavanaugh and Sotomayor, which I will not attempt to go over here. But the above points suffice to show how problematic Kavanaugh's position is.

In fairness, while Kavanaugh and possibly other conservative justices (depending on why they voted to impose the stay) are inconsistent on issues of racial discrimination, the same is true of the liberals. The arguments Kavanaugh uses to excuse racial profiling by law enforcement here are similar to those many left-liberals routinely use to justify affirmative action racial preferences in employment and university admissions. Just as Kavanaugh argues that race is just one of several factors used by ICE to decide who to detain, so defenders of affirmative action argue that race is just one of several factors in a "wholistic" process.

Kavanaugh also suggests that the use of race and ethnicity here may be understandable, given the large population of illegal migrants in the LA area, and the correlation (even if imperfect) between illegal status and the appearance of Hispanic ethnicity. As Kavanaugh notes, people who "come from Mexico or Central America and do not speak much English" are disproportionately likely to be illegal migrants. As I have been saying for many years, this kind of argument is very similar to standard rationales for affirmative action, which hold that there is a large population of ethnic minorities (particularly Blacks and Hispanics) who are disproportionately likely to be victims of past discrimination or to contribute to "diversity" in higher education. These correlations, it is said, justify the use of racial preferences, even if they are often inaccurate in a given case.

Conservatives and others who rightly reject this kind of rationale for affirmative action preferences should not accept the same flawed reasoning in the law enforcement context. Either it is acceptable for government to use race and ethnicity as a crude proxy for other characteristics, or it is not. If we truly believe in color-blind government, we cannot make an exception for for those government agents who carry badges and guns and have the power to arrest and detain people.

Nor can the exception be cabined to immigration enforcement. If preventing illegal migration is sufficient reason to authorize racial discrimination (so long as it isn't the only "sole" factor), why not preventing murder, rape, assault, or any number of other, more serious violations of the law? For that matter, why not pursuing racial justice - the traditional rationale for affirmative action (before it was displaced by the "diversity" theory, thanks to Supreme Court rulings blessing the latter)?

Today, the Supreme Court took a step in a badly wrong direction. But, since this is a shadow docket ruling issued without an majority opinion, it creates little, if any, binding precedent. Perhaps some of the five majority justices who didn't join Kavanaugh have different and narrower grounds for their stance. Hopefully, a majority will reach a different conclusion when and if they take up this kind of issue more systematically. We shall see.