President Donald J. Trump looks on as Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, swears in Judge Brett M. Kavanaugh to be the Supreme Court's 114th justice Monday, Oct. 8, 2018. (Official White House Photo by Joyce N. Boghosian)
Supreme Court Justice Brett Kavanaugh on Monday raised eyebrows with his suggested remediation for American citizens who are targeted by Immigration and Customs Enforcement (ICE).
Kavanaugh issued a concurring opinion in the Supreme Court's emergency ruling which, according to the American Immigration Council, "clears the way for racial profiling during immigration raids and sweeps." In his explanation of that decision, Kavanaugh argued Americans can sue the agency if their rights are violated — a solution experts warn undermines the 4th Amendment which protects people from unreasonable search and seizures.
“To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court.”
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That suggestion, according to CNN, is receiving major blowback from civil rights attorneys who say that the SCOTUS conservative supermajority makes such cases "nearly impossible to win."
The Supreme Court's "shadow docket" has been criticized for frequently siding the Trump administration on emergency applications. Critics and legal experts, including CNN Supreme Court analyst Steve Vladeck, argue that these decisions have far-reaching consequences and lack sufficient explanation, which undermines transparency.
“It’s bordering on impossible to get any sort of remedy in a federal court when a federal officer violates federal rights,” Patrick Jaicomo, a senior attorney at the libertarian Institute for Justice, told CNN.
National Police Accountability Project director Lauren Bonds agreed, saying, "What we’ve seen is, term after term, the court limiting the avenues that people have available to sue the federal government."
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The 6-3 ruling in the case known as Vasquez Perdomo v. Noem granted an emergency request from the Trump administration and temporarily halted a Los Angeles judge’s order that barred “roving patrols” from snatching people off California streets and questioning them based on how they look, what language they speak, what work they do or where they are.
Justice Sonia Sotomayor sent a searing dissent, saying, “The government, and now the concurrence, 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."
Harvard law professor Richard Re warned "it’s not clear what to make of [Kavanaugh's] remark."
“It could suggest a genuine interest, on at least one pivotal justice’s part, in revitalizing Fourth Amendment remediation," he said.
University of Chicago law professor William Baude questioned the explanation on social media, asking, "Sincerely wondering: what remedies does Justice Kavanaugh believe are and should be available in federal court these days for excessive force violations by federal immigration officials?"
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