THE 'SUPINE' COURT -- |
 | Sotomayor, in a seething objection to the ruling, which allowed profiling of Latinos, puts it this way: 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. |
 | Kavanaugh, defending the ruling, excuses the government’s tactics as having minimal impact on legal citizens, while dismissing objections to the tactics as little more than a lawbreaker’s attempt to avoid capture. He writes: The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest. |
THE ORDER WAS PART of the Supreme Court’s “emergency docket,” in which the orders usually aren’t signed or explained.
But Kavanaugh decided to give it a try, writing a “concurring” opinion. Whether his fellow conservatives – Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett – agreed with his reasoning isn't clear, since they wrote nothing.
Whether it was her need to counter Kavanaugh’s statement, or the weight of the issues themselves, Sotomayor wrote a dissent, which was signed by fellow liberal justices, Elena Kagan and Ketanji Brown Jackson.
After reading both statements Un-Judge Jones boils things down to two items:
1. The terms of the Fourth Amendment, which says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2. The meaning of the word “reasonable,” as when it’s okay to “search” or “seize” people suspected of being undocumented immigrants.
Un-Judge Jones was surprised by one element of the case: Federal law does allow immigration officers to stop and question an “alien’ or “suspected alien” about his or her legal status. But the catch is that an officer has to have a “reasonable suspicion,” based on specific facts, to do so.
Which is where the troubling profiling questions come in.
PROFILING
In their writings, the two justices largely agreed that that immigration agents had been using four factors in their hunt for undocumented immigrants:
To be clear, apparent ethnicity alone cannot furnish reasonable suspicion. Under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.
So the racial appearance alone isn't sufficient, he said. But heck, the way you look, combined with the other factors, and agents have got a suspicious character.
Sotomayor isn't buying that:
The Government, and now the concurrence (Kavanaugh) has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.
WHATS THE BIG DEAL?
Kavanaugh describes the stops by immigration agents as being no major problem for those involved, even people who turned out to have legal status, because, at worst, the stops were momentary inconveniences. He puts it this way:
If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go. If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal.
But Sotomayor cites actual examples, including those involving U.S. citizens, that were more brutal and disruptive than Kavanaugh described.
Such activities in “Operation At Large,” have caused “panic and fear” in the city and surrounding communities, she writes, with some people afraid to go to work or pick up their children from school.
BY THE NUMBERS
Kavanaugh notes that illegal immigration is a huge problem in the U.S., especially in Los Angeles, where he says 10 percent of the population, or 2 million persons, are “illegal immigrants.”
Not surprisingly, given those extraordinary numbers., U .S. immigration officers have prioritized immigration enforcement in the Los Angeles area.
So having lots of undocumented people around validates the use the four profiling factors to locate and question individuals.
But it doesn’t take a math wizard to consider the “extraordinary numbers” from a different point of view: that if 10 percent of the LA population is believed to be undocumented, then 90 percent are authorized to be in the U.S.
So it’s logical that a good many of the people are being stopped for no good reason.
Sotomayor says other LA numbers argue against using the profile factors as a way to zero in on illegal immigrants.
Never mind that nearly 47 percent of the Central District's population identifies as Hispanic or Latino . . . Never mind that over 37 percent of the population of Los Angeles County speaks Spanish at home,and over 55 percent speak at language other than English.
WHAT’S “REASONABLE?”
In order to stop someone for questioning, Kavanaugh writes, immigration officials must have “a reasonable suspicion” that a person is illegally in the U.S.
So, a combination of factors does that job, he says, including the “high number” of undocumented persons in LA; the belief that undocumented folks “tend to gathering in certain locations;” that “they often work in certain kinds of jobs;” and that many “come from Mexico or Central America and do not speak much English.” Kavanaugh writes:
Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal residents in the United States.
Not so fast, Sotomayor counters.
It’s not reasonable to suspect individual persons of wrong doing if the factors “describes a very large category of presumably innocent people,” she writes, quoting previous cases.
In one past case, Mexican ancestry “alone did not constitute reasonable suspicion to support stops by Border Patrol agents," because large numbers of authorized persons near the border look like people with Mexican backgrounds.
She says:
The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individual based solely on a set of facts that ‘describes a very large category of presumably innocent’ people.
THE PROPER ROLE OF THE COURT
Kavanaugh goes to some length to say that he isn’t trying to set immigration policy, just uphold the courts’ role as fair enforcers of the Constitution and the law, as the Supreme Court has done in the past.
. . . We now likewise must decline to step outside our constitutionally assigned role to improperly restrict reasonable Executive Branch enforcement of the immigration laws.
Consistency and neutrality are hallmarks of good judging and in my view, we abide by those enduring judicial values in this case by granting the stay.
But Kavanaugh sure sounds like a policy maven, with strong views on immigration, and not positive ones, noting that "millions" of people are here illegally, and that the big numbers cause a "myriad" of social and economic problems, quoting a previous case.
Kavanaugh does take a moment to show that he's a nice guy:
To be sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the United States to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families.
But he puts on his judicial face, noting sternly that illegal immigrants cause problems for immigrants who are doing things the right way:
. . . they are not only violating the immigration laws, but also jumping in front of those non-citizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.
Sotomayor, on the other hand, isn't debating immigration policy, but concentrates on the court’s role in enforcing the Constitution and immigration laws. The District Court’s order banning the profiling factors, she says:
. . . does not preclude the Government from enforcing the immigration laws, so long as in doing so, it stops individual based on additional facts on top of the four factors listed.
She writes that actual cases showed that legal as well as undocumented persons suffered, despite Kavanaugh’s assurances that stop were only mildly inconvenienced and that Kavanaugh’s reasoning:
. . . improperly shifts the burden onto an entire class of citizens to carry enough documentation to provide that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.
She continues with this damning statement:
Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents and the fact they make a living by doing manual labor. Today, the Court needlessly subjects countless more to these exact same indignities.
CONCLUSION
Un-Judge Jones, having read the two opinions, thinks Sotomayor out-classes Kavanaugh, certainly from a debating perspective.
Kavanaugh trivializes the harm caused to legal citizens, in the frightening nature of the experience of being stopped, in time lost from work and in the sheer worry about being intercepted by immigration officials, with some people feeling the need to carry documents proving their citizenship.
On the surface, at Kavanaugh's arguments sound like "common sense," one of the phrases he uses in his opinion, but actually they seem reckless, leaving citizens unprotected from overbearing government agents.
If someone looks like an undocumented person, talks like one, shows up in places where undocumented people supposedly frequent and if they perform jobs that many undocumented persons work - well, what the heck, why not? Ignoring the majority of people who fit the profile, but are legal citizens.
I find Kavanaugh's sympathy for immigrants, and his professed commitment to judicial impartiality, to be superficial and hypocritical - but that may be unfair to him.
Sotomayor, on the other hand, seems hard-headed and properly focused on the plain reading of the Fourth Amendment in protecting all of us from improper stops. I also like her emphasis on what happens in actual cases, as opposed to what's supposed to happen. She writes:
Immigration agents are not conducting "brief stops for questions," as the concurrence would like to believe. They are seizing people using firearms, physical violence and warehouse detentions.
Nor are undocumented immigrants the only ones harmed by the Government's conduct. United States citizens are also being seized, taken from their jobs and prevented from working to support themselves and their families.
What jumped out at me was that the ruling on profiling tactics is proably not about “illegal immigrants” but about people who are U.S. citizens.
Sotomayor emphasizes that the Fourth Amendment is supposed to protect everyone, and in this case, thousands of people are being brutalized, many of them legal U.S. citizens.
Think of profiling in a different context, let's say locating potential assassins.
The criteria might include factors such as: *gun owners, *registered voters, *young males, *consumers of social media, *people with valid drivers' licenses, *folks who wear baseball caps, *weirdos who lately have been acting even more strangely than usual, *video gamers, *guys living in their parents' basements, and * people who weren't popular in school.
Rounding up thousands, even millions, of people meeting those criteria might land one or two possible assassins; or, maybe not. But, for sure you'd be bothering lots of innocent people.
Sadly, though, I don't think words matter all that much in today's Supreme Court
The ultimate decision, when the profiling case completes the appeals level and returns to the Supreme Court for a final opinion, what's "reasonable" and what's not will depend on the whims of the individual justices.
And I'm betting the justices have already made up their minds, and they'll dress up their conclusions in courtly, legal language.
Then what will matter won't be words, but numbers.
Six to three; five to four.
All of this, of course,is just Un-Judge Jones' opinion.
He very much would like to be overruled - and surprised - by the nation's highest court.
* * *
NOTE: If you'd like to read the case, here's the PDF that includes the Kavanaugh and Sotomayor opinions.
But Kavanaugh decided to give it a try, writing a “concurring” opinion. Whether his fellow conservatives – Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett – agreed with his reasoning isn't clear, since they wrote nothing.
Whether it was her need to counter Kavanaugh’s statement, or the weight of the issues themselves, Sotomayor wrote a dissent, which was signed by fellow liberal justices, Elena Kagan and Ketanji Brown Jackson.
After reading both statements Un-Judge Jones boils things down to two items:
1. The terms of the Fourth Amendment, which says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2. The meaning of the word “reasonable,” as when it’s okay to “search” or “seize” people suspected of being undocumented immigrants.
Un-Judge Jones was surprised by one element of the case: Federal law does allow immigration officers to stop and question an “alien’ or “suspected alien” about his or her legal status. But the catch is that an officer has to have a “reasonable suspicion,” based on specific facts, to do so.
Which is where the troubling profiling questions come in.
PROFILING
In their writings, the two justices largely agreed that that immigration agents had been using four factors in their hunt for undocumented immigrants:
- What did immigrant suspects look like, based on their racial and ethnic appearances?
- Did they speak English and, if so, how well?
- What places where undocumented persons were likely to gather, perhaps looking for work, like a big box store parking lot, a car wash or a bus stop?
- What kinds of jobs did undocumented workers seek, such as landscaping, construction, agriculture and day labor.
To be clear, apparent ethnicity alone cannot furnish reasonable suspicion. Under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.
So the racial appearance alone isn't sufficient, he said. But heck, the way you look, combined with the other factors, and agents have got a suspicious character.
Sotomayor isn't buying that:
The Government, and now the concurrence (Kavanaugh) has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.
WHATS THE BIG DEAL?
Kavanaugh describes the stops by immigration agents as being no major problem for those involved, even people who turned out to have legal status, because, at worst, the stops were momentary inconveniences. He puts it this way:
If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the United States, they promptly let the individual go. If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal.
But Sotomayor cites actual examples, including those involving U.S. citizens, that were more brutal and disruptive than Kavanaugh described.
- Jason Gavidia, “a Latino U.S. citizen,” was working on his car in a tow yard, when a masked agent asked three times whether he was an American, to which he said yes. But when Gavidia couldn’t remember the name of the hospital in which he was born, agents “racked a rifle,” took his phone, pushed him against a fence, and twisted his arm. He was released only when Gavidia produced a REAL identification, (which was not returned to him).
- *Jorge Viramontes, a citizen, managed a car wash, which immigrant agents went to four times over nine days. One of those times, an agent refused to accept Viramontes' driver’s license as proof of citizenship and drove him to a “warehouse” for 30 minutes before verifying his status and driving him back to the car wash.
Such activities in “Operation At Large,” have caused “panic and fear” in the city and surrounding communities, she writes, with some people afraid to go to work or pick up their children from school.
BY THE NUMBERS
Kavanaugh notes that illegal immigration is a huge problem in the U.S., especially in Los Angeles, where he says 10 percent of the population, or 2 million persons, are “illegal immigrants.”
Not surprisingly, given those extraordinary numbers., U .S. immigration officers have prioritized immigration enforcement in the Los Angeles area.
So having lots of undocumented people around validates the use the four profiling factors to locate and question individuals.
But it doesn’t take a math wizard to consider the “extraordinary numbers” from a different point of view: that if 10 percent of the LA population is believed to be undocumented, then 90 percent are authorized to be in the U.S.
So it’s logical that a good many of the people are being stopped for no good reason.
Sotomayor says other LA numbers argue against using the profile factors as a way to zero in on illegal immigrants.
Never mind that nearly 47 percent of the Central District's population identifies as Hispanic or Latino . . . Never mind that over 37 percent of the population of Los Angeles County speaks Spanish at home,and over 55 percent speak at language other than English.
WHAT’S “REASONABLE?”
In order to stop someone for questioning, Kavanaugh writes, immigration officials must have “a reasonable suspicion” that a person is illegally in the U.S.
So, a combination of factors does that job, he says, including the “high number” of undocumented persons in LA; the belief that undocumented folks “tend to gathering in certain locations;” that “they often work in certain kinds of jobs;” and that many “come from Mexico or Central America and do not speak much English.” Kavanaugh writes:
Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal residents in the United States.
Not so fast, Sotomayor counters.
It’s not reasonable to suspect individual persons of wrong doing if the factors “describes a very large category of presumably innocent people,” she writes, quoting previous cases.
In one past case, Mexican ancestry “alone did not constitute reasonable suspicion to support stops by Border Patrol agents," because large numbers of authorized persons near the border look like people with Mexican backgrounds.
She says:
The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individual based solely on a set of facts that ‘describes a very large category of presumably innocent’ people.
THE PROPER ROLE OF THE COURT
Kavanaugh goes to some length to say that he isn’t trying to set immigration policy, just uphold the courts’ role as fair enforcers of the Constitution and the law, as the Supreme Court has done in the past.
. . . We now likewise must decline to step outside our constitutionally assigned role to improperly restrict reasonable Executive Branch enforcement of the immigration laws.
Consistency and neutrality are hallmarks of good judging and in my view, we abide by those enduring judicial values in this case by granting the stay.
But Kavanaugh sure sounds like a policy maven, with strong views on immigration, and not positive ones, noting that "millions" of people are here illegally, and that the big numbers cause a "myriad" of social and economic problems, quoting a previous case.
Kavanaugh does take a moment to show that he's a nice guy:
To be sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the United States to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families.
But he puts on his judicial face, noting sternly that illegal immigrants cause problems for immigrants who are doing things the right way:
. . . they are not only violating the immigration laws, but also jumping in front of those non-citizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.
Sotomayor, on the other hand, isn't debating immigration policy, but concentrates on the court’s role in enforcing the Constitution and immigration laws. The District Court’s order banning the profiling factors, she says:
. . . does not preclude the Government from enforcing the immigration laws, so long as in doing so, it stops individual based on additional facts on top of the four factors listed.
She writes that actual cases showed that legal as well as undocumented persons suffered, despite Kavanaugh’s assurances that stop were only mildly inconvenienced and that Kavanaugh’s reasoning:
. . . improperly shifts the burden onto an entire class of citizens to carry enough documentation to provide that they deserve to walk freely. The Constitution does not permit the creation of such a second-class citizenship status.
She continues with this damning statement:
Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents and the fact they make a living by doing manual labor. Today, the Court needlessly subjects countless more to these exact same indignities.
CONCLUSION
Un-Judge Jones, having read the two opinions, thinks Sotomayor out-classes Kavanaugh, certainly from a debating perspective.
Kavanaugh trivializes the harm caused to legal citizens, in the frightening nature of the experience of being stopped, in time lost from work and in the sheer worry about being intercepted by immigration officials, with some people feeling the need to carry documents proving their citizenship.
On the surface, at Kavanaugh's arguments sound like "common sense," one of the phrases he uses in his opinion, but actually they seem reckless, leaving citizens unprotected from overbearing government agents.
If someone looks like an undocumented person, talks like one, shows up in places where undocumented people supposedly frequent and if they perform jobs that many undocumented persons work - well, what the heck, why not? Ignoring the majority of people who fit the profile, but are legal citizens.
I find Kavanaugh's sympathy for immigrants, and his professed commitment to judicial impartiality, to be superficial and hypocritical - but that may be unfair to him.
Sotomayor, on the other hand, seems hard-headed and properly focused on the plain reading of the Fourth Amendment in protecting all of us from improper stops. I also like her emphasis on what happens in actual cases, as opposed to what's supposed to happen. She writes:
Immigration agents are not conducting "brief stops for questions," as the concurrence would like to believe. They are seizing people using firearms, physical violence and warehouse detentions.
Nor are undocumented immigrants the only ones harmed by the Government's conduct. United States citizens are also being seized, taken from their jobs and prevented from working to support themselves and their families.
What jumped out at me was that the ruling on profiling tactics is proably not about “illegal immigrants” but about people who are U.S. citizens.
Sotomayor emphasizes that the Fourth Amendment is supposed to protect everyone, and in this case, thousands of people are being brutalized, many of them legal U.S. citizens.
Think of profiling in a different context, let's say locating potential assassins.
The criteria might include factors such as: *gun owners, *registered voters, *young males, *consumers of social media, *people with valid drivers' licenses, *folks who wear baseball caps, *weirdos who lately have been acting even more strangely than usual, *video gamers, *guys living in their parents' basements, and * people who weren't popular in school.
Rounding up thousands, even millions, of people meeting those criteria might land one or two possible assassins; or, maybe not. But, for sure you'd be bothering lots of innocent people.
Sadly, though, I don't think words matter all that much in today's Supreme Court
The ultimate decision, when the profiling case completes the appeals level and returns to the Supreme Court for a final opinion, what's "reasonable" and what's not will depend on the whims of the individual justices.
And I'm betting the justices have already made up their minds, and they'll dress up their conclusions in courtly, legal language.
Then what will matter won't be words, but numbers.
Six to three; five to four.
All of this, of course,is just Un-Judge Jones' opinion.
He very much would like to be overruled - and surprised - by the nation's highest court.
* * *
NOTE: If you'd like to read the case, here's the PDF that includes the Kavanaugh and Sotomayor opinions.
2 Comments
Tony Allen
9/25/2025 08:16:34 pm
This reflects a lot of hard work on Brian's part even if it doesn't bode well for our endangered nation. Imposssible to believe that being taken against one's will to an ICE facility would seem like "common sense" governing to the authors of our Bill of Rights.
Neale
9/26/2025 12:09:48 am
A very good analysis. Kavanaugh's argument is very weak, it seems to me.
It is true, as he writes, that "The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest."
But it is only true when, in a specific case, if ICE has reasonable grounds to suspect an individual is indeed illegally in the country. The four criteria are insufficient to do that., it seems to me (and Sotomayer).
Not being subjected to unreasonable search and seizure is an especially weighty legal interest.
The question arises: what would be reasonable grounds?
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BRIAN C. JONES
I'VE BEEN a reporter and writer for 61 years, long enough to have learned that journalists don't know very much, although I've met some smart ones.
Mainly, what reporters know comes from asking other people questions and fretting about their answers.
This blog is a successor to one inspired by our dog, Phoebe, who was smart, sweet and the antithesis of Donald Trump. She died Feb. 3, 2022, and I don't see getting over that very soon.
Occasionally, I think about trying to reach her via cell phone.
Mainly, what reporters know comes from asking other people questions and fretting about their answers.
This blog is a successor to one inspired by our dog, Phoebe, who was smart, sweet and the antithesis of Donald Trump. She died Feb. 3, 2022, and I don't see getting over that very soon.
Occasionally, I think about trying to reach her via cell phone.
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