The U.S. Supreme Court once again used the side door—the famous “emergency” or shadow docket—to tip the immigration balance.
With a stay order, the court this week allowed federal agents in Los Angeles to resume indiscriminate operations and arrests that a judge had halted because they were based on racial profiling.
Conservative Justice Brett Kavanaugh justified the ruling as follows: “Apparent ethnicity alone cannot constitute reasonable suspicion; however, under this Court’s jurisprudence on immigration detention, it can be a ‘relevant factor’ when considered alongside other relevant factors.”
In contrast, the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson, dissented. “We should not have to live in a country where the government can detain anyone who looks Latino, speaks Spanish, and appears to have a low-paying job,” Sotomayor wrote. “
It’s not a definitive ruling, but it is a sign: while the litigation continues, the traffic light is green for practices that expand immigration agents’ discretion to detain any Latino who “appears” undocumented.
The decision overturns, for now, Judge Maame Ewusi-Mensah Frimpong’s order prohibiting agents from using race or ethnicity, language, location, and occupation to detain people, due to what she described as a “mountain of evidence” of abuses, including U.S. citizens handcuffed for “appearing” to be migrants.
The Supreme Court turned off that red light while the case goes up and down the courts. ICE is immediately resuming massive operations. In fact, Operation Midway Blast was immediately announced in Chicago.
If this sounds like old jurisprudence with a new filter, it’s no coincidence. In 1975, United States v. Brignoni-Ponce had already ruled that “Mexican appearance” alone does not authorize a car stop, but it opened the door to considering ethnicity as one factor among others. Twenty years later, Whren v. United States legitimized pretextual stops for traffic violations: if there is an objective violation, the officer’s actual motivation is irrelevant.
Between Brignoni-Ponce and Whren, the scaffolding was set for racial profiling to be disguised as a “totality of circumstances.” This week’s order doesn’t reinvent the wheel; it merely oils it.
There is, of course, another reading: that the court merely shut down an “overly restrictive” jurisdictional experiment and returned the issue to its normal course, pending an analysis of the root of the problem.
But the practical message is unequivocal: in a metropolitan area of 20 million people, where speaking Spanish and working with one’s hands is commonplace, the proposed criteria amount to a shortcut to stopping “almost anyone” who fits into a very wide silhouette.
What can we expect? Immigration agents with more leeway to stop first and ask questions later. This creates a state of social panic: if your Hispanic ethnicity, accent, occupation, or geography puts you in their sights, you hide. Not just undocumented immigrants; residents and citizens too.
That’s why it’s more important than ever to know your rights. Visit LaRedHispana.com to learn what to do if you are detained by immigration authorities.
