3 Protect Democracy experts on the Supreme Court’s immigration raids order
Why it matters *and* what to do in response
Yesterday, the Court issued an emergency docket ruling in Noem v. Vasquez Perdomo, pausing a lower court prohibition on racial profiling among other tactics in ICE raids in Los Angeles and elsewhere.
In July, the trial court had held that federal officers were stopping Angelenos based on (1) their apparent race or ethnicity; (2) whether they spoke Spanish or English with an accent; (3) the type of location at which they were found (such as a car wash or bus stop); and (4) the type of job they appeared to work. The court found that relying on all of those factors or any of them did not give officers the particularized reasonable suspicion required by the Constitution, and entered a temporary restraining order preventing them from making stops based on these factors. The Ninth Circuit declined to stay the order, but yesterday, the Supreme Court jumped in and issued the stay.
Here are reactions from three Protect Democracy experts:
“License to discriminate”
It’s not news that the Supreme Court is dominated by a majority happy to abandon longstanding precedent in order to expand presidential power at the expense of the American public. It’s not even news that this majority feels empowered to wreak such havoc by means of the shadow docket — that is, when cases are at their early stages, rather than after months of briefing, fact development, and thought — without explaining the rationale (or even coming to agreement on the reasoning) for tectonic shifts to the American public and, in many cases, without individual justices signing their names to decisions.
Yet even in that context, yesterday’s decision in Noem v. Vasquez Perdomo shocked me.
There is no signed opinion from the Court here, just a concurrence from Justice Kavanaugh. The concurrence is riddled with errors and contradictions and displays contempt toward Latinos generally, toward the careful factfinding of trial courts, and toward the very concept of freedom from government intrusion in (some of) our daily lives.
It’s difficult to catalog those errors in this short space, but they include: One, implying that the proportion of undocumented immigrants in Los Angeles justifies incursions on the individual rights of Angelenos secured by the Bill of Rights (which demands particularized reasonable suspicion). Two, pretending that the Court’s precedent already supported profiling by, say, race and language proficiency together as grounds for a police stop. And three, responding to numerous instances of law enforcement violence in the record — including violence against legal residents — by suggesting that (a) stops are nothing more than a minor inconvenience, (b) courts are powerless to prevent these awful incursions on personal autonomy in advance, and (c) victims of such violence could be made whole by later suing for damages, a route foreclosed by the Court’s recent decisions.
The bottom line is that the concurrence gives ICE license to discriminate based on race. Considering this decision alongside the Court’s other recent pronouncements on race — in the context of college admissions and voting rights — leads to an inescapable and devastating conclusion: The law, according to the current Supreme Court majority, allows race to be considered when it is to the detriment of people of color but not when it is to their benefit.
For me, yesterday’s decision underscores a dark reality: The Supreme Court has lost its way as a source of settled, unifying constitutional law. The seat, as Josh Marshall might put it, is feeling emptier than ever. Building a shared concept of what the Constitution means — beyond the unexplained whims of the six justices on this Court — feels ever more urgent.
“Step out of political hobbyism”
By Brittany Williams and Anna Dorman
If you agree that the Perdomo decision does not reflect the values of a healthy multiracial democracy, you are not powerless. We can step out of what political scientist Eitan Hersh calls political hobbyism — essentially, engaging in politics as a consumer rather than as an agent seeking change — and embrace a range of actions that not only make our values clear but also build our small-d democratic muscles and strengthen community ties to protect all our neighbors.
One: Redouble your commitment to using your constitutional rights.
The Supreme Court is a political institution. In the long run, it is responsive to politics. Turn your attention to the nearest relevant election — here’s a great guide to ten important races in September — in an effort to elect officials who will, in turn, create laws, enact policies, and appoint judges who interpret and police those laws. Right now is also a great time to explore running for office yourself — thousands of critical local positions, which make decisions like whether your school district will cooperate with ICE, go uncontested every single election.
Similarly, your constitutional rights to protest, dissent, and criticize the Court and this administration remain staunchly protected. Use them by joining a demonstration, by writing a letter to the editor, by calling your representatives, or by simply putting a handmade sign in your window.
These are all legitimate exercises of your political power as a U.S. citizen.
But the Trump administration would have you believe that is all you can do, and it would prefer that you feel powerless as it uses SCOTUS’s most recent decision as permission to target your neighbors, colleagues, and loved ones. This is not true — you have more power still.
Two: Challenge racial profiling.
A story from Billings, Montana, illustrates this point beautifully. Billings is an overwhelmingly white, Christian, conservative community, and in the early 1990s fewer than 50 Jewish families lived there. In 1993, hate groups started targeting Jewish families — throwing rocks through front windows, leaving hateful notes and fliers in public places. As the holidays drew near, Jewish families were scared to put menorahs in their windows.
A Christian mother was horrified by the violence and suggested to her pastor that the children draw menorahs in Sunday school as an act of solidarity. They photocopied the drawings and Christian families throughout Billings displayed them in their front windows. The violence did not cease immediately — but with each act of violence more menorahs appeared. By late December it’s estimated that as many as 6,000 homes in Billings had images of menorahs on display.
Now is the time for those of us who are unlikely to be profiled to do the equivalent of putting menorahs in our windows — perhaps Mexican flags on cars and apartments. Attend your community's Mexican Independence Day celebrations next week. Support Latino-owned businesses in your community. Reach out to Latino friends, community, and advocacy organizations to see how you can most effectively support and stand in solidarity. If ICE is going to rely on symbols or stereotypes of Mexican heritage or Latino culture to target members of our community, we all must step up and do more to exercise our rights and protect our neighbors.
Three: Be an educator.
The Supreme Court’s decision in Perdomo does not change any of our constitutional or immigration-related rights. We still have the right to remain silent. We still have the right to require a signed warrant before letting any form of law enforcement in our homes. Now more than ever, it is essential to have concrete knowledge of your rights in any interaction with law enforcement — know them so well that you will remember in a moment of fear and chaos. And once you have it down, make sure your community knows.
Know Your Rights resources are available in multiple languages (English, Spanish, more languages).
For more tangible tips on what you can do, see: 29 concrete actions you can take right now to protect our system of government.
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