In what may be its most reactionary ruling since Plessy v. Ferguson, the Supreme Court decided on Sept. 8 to allow the Trump administration and Immigration and Customs Enforcement to resume overt racial profiling in immigration raids in Los Angeles. The raids, which began in June under the title of Operation At Large, have resulted in some 5,000 arrests.
The order was handed down in the case of Noem v. Perdomo on the court’s emergency, or “shadow,” docket, which consists of cases decided on an expedited basis — without comprehensive briefing and without oral arguments — outside of the normal “merits docket.” The order lifts a lower-court injunction that had barred the administration from detaining suspected undocumented immigrants based solely on their ethnicity, language, geographic location and occupations.
Like most shadow docket rulings, the Perdomo order is bare-bones, comprising a single paragraph that fails to explain the court’s rationale for its decision. Nonetheless, it sends a clear message: If you are Latino, you’d better start carrying your identification papers with you — and they had better be in order. Otherwise, you will be subject to detention, and you might just find yourself on a deportation flight to El Salvador, South Sudan or Uganda.
The Perdomo litigation originated with a lawsuit filed on behalf of a group of immigration advocacy organizations and five individuals, including two U.S. citizens who contend they were detained by ICE during Operation At Large in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures. On July 11, Los Angeles District Court Judge Maame E. Frimpong issued a temporary restraining order against the administration, finding that a “mountain of evidence” supported the plaintiffs’ claims that “roving patrols” of masked federal agents were conducting indiscriminate and sometimes violent dragnet-style immigration raids of workplaces and communities.
It sends a clear message: If you are Latino, you’d better start carrying your identification papers with you.
The court’s quick overturning of Frimpong’s TRO comes as no surprise. Although the court has a long history of entertaining emergency appeals that bypass the normal appeals process — such as last-minute requests for stays of execution in death penalty cases — no president has relied on the shadow docket more than Donald Trump. According to Georgetown University law professor and shadow docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times. By comparison, the George W. Bush and Obama administrations filed a combined total of eight emergency relief requests over a 16-year period while the Biden administration filed 19 applications across four years.
During its recently completed 2024-25 term, the court’s shadow docket exploded to more than 100 cases, fueled by the second Trump administration’s authoritarian power grab. In addition to Perdomo, the court has issued pro-Trump shadow docket orders permitting noncitizens to be deported to third-party countries with histories of egregious human rights violations; barring transgender people from serving in the military; withholding $65 million in teacher training grants to states that include diversity, equity and inclusion initiatives in their operations and curriculums; and endorsing the Department of Government Efficiency’s access to Social Security Administration records, to cite just a few instances.
And while shadow docket decisions are technically “interim” in nature — operating to remand cases to the lower courts for additional proceedings and leaving space for a possible return to the Supreme Court — they have enduring practical consequences. Unless and until the Supreme Court takes up the Perdomo case again, for example, ICE will be free to ramp up its roving masked raids in Los Angeles and other cities like Chicago, Baltimore and Washington, D.C. There are no longer any safe zones.
Of the high court’s six Republican ideologues, only Brett Kavanaugh explained his reasoning in Perdomo. In a poorly crafted opinion filled with misstatements of fact and law, Kavanaugh cited provisions in the Immigration and Nationality Act and a 1975 Supreme Court case (United States v. Brignoni-Ponce) that authorize immigration agents to briefly detain and question individuals if they have a “reasonable suspicion” (less than probable cause but more than a hunch) that the person being questioned is an alien illegally in the country. From there, however, Kavanaugh dropped the proverbial ball by remarking, without any citations to the trial court’s evidentiary record:
The Government estimates that at least 15 million people are in the United States illegally. Many millions illegally entered (or illegally overstayed) just in the last few years.
Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million.
Not surprisingly given those extraordinary numbers, U.S. immigration officers have prioritized immigration enforcement in the Los Angeles area. The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. 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.
Given what he took for granted as the outsized illegal alien population in greater Los Angeles, Kavanaugh reasoned that it is “common sense” (his words, trust me) for ICE agents to detain any Latinos who fit the government’s criteria of suspicion based on their race, language or employment in low wage jobs.
In a blistering 21-page dissent, Justice Sonia Sotomayor, joined by fellow Democrats Elena Kaga and Ketanji Brown Jackson, took Kavanaugh to school, instructing the former Yale frat boy that the reasonable suspicion standard requires …
“… an individualized suspicion that a particular citizen was engaged in a particular crime” beyond just a “demographic profile.” …
The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that ‘describe[s] a very large category of presumably innocent’ people. … As the District Court correctly held, the four factors [the administration relies on]—apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work—are no more indicative of illegal presence in the country than of legal presence.
Sotomayor also educated Kavanaugh on the harsh on-the-ground realities of Operation At Large, noting several examples from the trial court record of violence and intimidation. In the L.A. suburb of Glendale, for instance …
… nearly a dozen masked agents with guns “jumped out of … cars” at a Home Depot, and began “chasing and tackl[ing] Latino day laborers without “identify[ing] themselves as ICE or police, ask[ing] questions, or say[ing] anything else. … In downtown Los Angeles, agents “jumped out of a van, rushed up to [a tamale vendor], surrounded him, and handled him violently,” all “[w]ithout asking … any questions.
In still another Home Depot encounter drawn from the evidentiary record, masked agents wearing bulletproof vests got out of a car and tear-gassed a crowd that had gathered to witness a raid. Far from being polite and respectful, Sotomayor continued, Operation At Large has sparked “panic and fear” across Los Angeles and its surrounding areas. “Countless people in the Los Angeles area,” she observed, “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.”
The Fourth Amendment, she reminded her Republican colleagues, “protects every individual’s constitutional right to be free from arbitrary interference by law officers.” Sadly, she concluded, after the Perdomo ruling, “that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.”
As a Supreme Court justice constrained by the need for collegiality on the bench, Sotomayor stopped short of denouncing Kavanaugh and the court’s Republicans as enablers of racism. There is no reason for the rest of us to feel so reserved.