SCOTUS Blessed "Kavanaugh Stops." Will They Also Give Thumbs Up To "Roberts Residencies?"

Maybe Barrett Bookings? Alito Arrests? Gorsuch Guest Passes?

On September 8, the Supreme Court effectively legalized racial profiling. Naturally, they did it on the shadow docket, in a one-paragraph order in which five of the six conservative justices voted to stay a trial judge’s order “pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” So far, so blahblahblah. But Justice Kavanaugh, likely stinging from criticism of the Supreme Court’s unexplained shadow docket rulings, took it upon himself to explain that the conservative justices are very definitely greenlighting racial profiling.

Kavanaugh imagined a cheerful exchange, wherein ICE agents politely ask for confirmation of citizenship and are quickly on their way.

“The questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States,” he insisted, despite extensive evidence that ICE agents are tackling every brown person they see and locking up a lot of citizens who fail to “make clear” their right to walk down the street in a fashion that satisfies a pack of glorified bounty hunters.

Apparently the Fourth Amendment no longer applies to “detentive stops,” since all that’s required for reasonable suspicion of a crime these days is speaking Spanish at Home Depot. So now plaintiffs have filed a new lawsuit pointing out that what ICE is doing is not, in fact, briefly detaining people. It’s arresting them, without probable cause and illegally holding them for days on end.

How will SCOTUS justify that one?

Vasquez Perdomo v. Noem

The Supreme Court’s racial profiling order stayed an injunction by US District Judge Maame Frimpong, who worked from the uncontroversial premise that ICE agents cannot detain an individual without reasonable suspicion that he committed a crime. All parties agree that race alone cannot form the basis for reasonable suspicion. But Judge Frimpong disagreed with the government’s position that mixing race with some other general characteristic, like working in construction, miraculously transforms it into a legal basis for reasonable suspicion.

Specifically she barred DHS from detaining people based on these four factors “alone or in combination”:

i. Apparent race or ethnicity;

ii. Speaking Spanish or speaking English with an accent;

iii. Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or

iv. The type of work one does

But Justice Kavanaugh said that RACE + LOCATION (OR LAWN MOWER) makes it legal for ICE to grab up every brown person outside a Home Depot.

He began by stating as fact that one in ten people in Los Angeles is an undocumented immigrant and that immigrants cause “significant economic and social problems.” He cited no evidence for the first, and the second is dicta from a fifty-year-old Supreme Court case called US v. Brignoni-Ponce— fair evidence that Kavanaugh knows he’s building his house on a pack of racist cards. Having established his bigot bona fides, he went on to reason that ICE goons need not have reasonable suspicion that an individual is an undocumented immigrant; a mere collection of demographic probabilities will do the trick.

In Brignoni-Ponce, the Court held that “Driving While Mexican” could not amount to reasonable suspicion for a traffic stop because it “would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers.” But Kavanaugh was unbothered, blithely asserting that, under “this Court’s precedents, not to mention common sense,” ICE can legally stop someone for being a Hispanic landscaper and demand proof of citizenship.

This is clearly a violation of the Fourth Amendment, and so Kavanaugh took pains to downplay the interaction as a mere collegial inquiry.

“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,” he simpered. “Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”

This was horseshit when he wrote it, and it’s horseshit now. The complaint in Vasquez Perdomo records multiple instances of ICE physically attacking US citizens and locking them up for hours or even days. That’s not a “brief” detention — it’s an arrest without anything like probable cause.

Judge Frimpong described Pedro Vasquez Perdomo, a US citizen, being arrested and held without charge for at least two days:

In the early morning of June 18, 2025, in Pasadena, California, Vasquez Perdomo was waiting at a bus stop across the street from Winchell’s Donuts with several co-workers to be picked up for a job. About four cars converged on his location, and about half a dozen masked agents jumped out on either side of him. They had weapons and masks, and did not identify themselves. Vasquez Perdomo tried to leave but was surrounded, grabbed, handcuffed, and put into one of the vehicles. No warrant was shown. It was only after he was brought to a nearby CVS parking lot that agents checked Vasquez Perdomo’s identification. Agents did not inform Vasquez Perdomo that they were immigration officers authorized to make an arrest or of the basis for his arrest. At the time this action was filed, Vasquez Perdomo had been transported to and was being held at B-18. There, he experienced extremely crowded and unsanitary conditions, was given little to eat or drink, and slept on the floor.

In fact, hundreds of American citizens have been brutalized and arrested in these supposedly “brief investigative stops.”

They include: Army veteran George Retes, who was detained in California for three days without being allowed to speak to a lawyer or even take a shower to wash off the pepper spray police soaked him with after he said “I’m a citizen;” 19-year-old Jose Hermosillo, who was detained for ten days in Arizona for the crime of walking around without ID while Latino; and Illinois man Julio Noriega, who was cuffed and thrown into a van without anyone even asking about his citizenship, and only released ten hours later after ICE bothered to look in Noriega’s confiscated wallet and found his ID.

US citizens have no obligation to walk around with our “papers,” not even if we are Hispanic and work “in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants,” as Justice Kavanaugh put it. None of this is legal, regardless of the citizenship status of the victim. And, by the by, Kavanaugh’s imagined binary — citizen or “illegal” immigrant — ignores the fact that hundreds of thousands of non-citizens are living in this country with legal status as students, or green card holders, or asylum seekers. How are they supposed to prove their right to walk down the street unmolested in this friendly chat of Kavanaugh’s daydreams?

Escobar Molina v. Department of Homeland Security

A lawsuit filed Friday in DC dispenses with the justice’s creative fiction that ICE is making a “detentive stop” when it snatches up every non-white person who can’t immediately “prove” their citizenship status and carts them off in shackles. The lead plaintiff, José Escobar Molina, is a Salvadoran immigrant with legal status who was walking to work in DC on August 21 when “agents arrested him without a warrant and without asking for his name, his identification, or anything about his immigration status.” He was taken to Virginia and held overnight until ICE finally realized that he was legal and released him. That is clearly an arrest which requires probable cause to believe that the person is in the US without legal status and that he is likely to flee in the time that it takes to get an arrest warrant.

See 8 USC § 1357(a)(2):

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant …. to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;

The plaintiffs have essentially called Kavanaugh’s bluff: If the Court won’t protect immigrants from unlawful detentions, then let’s dispense with the charade that these are “brief” stops and acknowledge that they are dragnets designed to arrest every non-white person in a particular location and figure out at some future hour whether they have committed a “crime.”

STFU, Brett

Perhaps Justice Kavanaugh will learn to keep his mouth shut next time his pals try to put out an indefensible shadow docket order. But despite the fact that none of his fellow conservatives signed on to Kavanaugh’s concurrence, Kristi Noem’s pack of mangy dogs is taking it as carte blanche to run riot in the streets.

“The Supreme Court’s decision is evidence of the fact Border Patrol follows the Constitution and the Fourth Amendment,” smirked Gregory Bovino, the Customs and Border Patrol official who supervised the ICE dragnets in California. The New York Times reports that Michele Beckwith, the US Attorney for the Eastern District of California, was fired after reminding Bovino that he’d need reasonable suspicion to detain people in his raid on Sacramento. Within five hours of warning Bovino that she expected “compliance with court orders and the Constitution,” Beckwith was terminated from the office she’d worked in for 15 years.

Meanwhile on BlueSky, lawyers are calling the daily barrage of violent ICE attacks “Kavanaugh stops,” after the man who explained that they were very cool and very legal. Let’s see whether Kavanaugh sticks his neck out again to explain why courts are simply powerless to stop the government from locking up US citizens without charge for days on end, but it’s fine, really because actually ...

…

Nope, we are not creative (or evil) enough to come up with a way to paint locking human beings in a dungeon is merely a civil exchange of pleasantries. Over to you, Brett.