Supreme Court authorizes ICE to use racial profiling

September 9, 2025

The Supreme Court is broken. On Monday, it granted Trump's goon squads at ICE the ability to use racial profiling to detain anyone in America. According to the Supreme Court, ICE can rely on factors such as “apparent race or ethnicity,” accent, employment status, or generalized location to detain someone they believe to be a non-citizen. But if those impermissible and illegal bases for randomly stopping people can’t justify detaining someone, Justice Brett Kavanaugh suggests that ICE agents can simply rely on their “common sense.”

In a decision that can only be described as racist to its core, the reactionary majority created an exception to “probable cause” that swallows it whole. The decision is particularly problematic because the order is an unsigned opinion on the shadow docket that provides no rationale for overruling the detailed and persuasive opinions of the district court and the court of appeals. Instead, lower court judges are left to “guess” why the reactionary majority overruled the lower courts.

Into the void created by the majority’s unsigned opinion, Brett Kavanaugh stumbled into the room and said, “Hold my beer! I can make this worse!” And he did. A lot worse.

The Supreme Court’s order and Kavanaugh’s concurrence are here: Kristi Noel vs. Pedro Vasquez Perdomo.

The lower courts found that federal agents violated the 4^th Amendment because

the stops are based on the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.

The Supreme Court issued an unsigned order that lifted the lower court’s injunction prohibiting ICE from using such factors to establish “reasonable suspicion” for temporarily detaining people to determine their citizenship status.

Where the two lower courts saw a flagrant violation of the Constitution, Brett Kavanaugh saw a cornucopia of reasons to justify the detentions. Relying on the “totality of the circumstances” approach to support the detention, Kavanaugh wrote:

Here, those [totality of the] circumstances include:

• That there is an extremely high number and percentage of illegal immigrants in the Los Angeles area.

• that those individuals tend to gather in certain locations to seek daily work;

• that those individuals often 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; and

• that many of those illegally in the Los Angeles area . . . do not speak much English.

Do you notice anything about the above factors?

None of them relates to particularized suspicions about the specific individual being detained. Each of the enumerated factors relates to racist assumptions about how a population of millions of Latinos in California allegedly tends to act, speak, look, and work. In other words, applying those factors does not require any particularized suspicion about the person being detained! Anyone who “looks” like they may not be a citizen because they are Latino is subject to detention.

The reasoning (thus far) is a wholesale violation of the 4^th Amendment, effectively permitting the racial profiling of Latinos to justify illegal detentions.

But it gets worse, Kavanaugh then goes on to explain (incorrectly) that the above factors comply with Supreme Court precedent (they do not) and that they are based “on common sense.”

Kavanaugh writes,

Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.

Kavanaugh’s appeal to “common sense” is appalling. One person’s “common sense” is another person’s bigotry. Kavanaugh grew up in a wealthy household, the son of two lawyers, one of whom was a lobbyist who earned $13 million in 2005. Kavanaugh was groomed for a lifetime of privilege and power. He attended the prestigious Georgetown Prep before attending Yale College and Yale Law School. See PBS News, (9/2/2018), High court pick Kavanaugh and his carefully constructed life.

Given Kavanaugh’s hand-curated upbringing designed to grant him access to the halls of power, his only exposure to Latinos may have been when they performed landscaping or domestic services for his wealthy parents. In that rarefied and artificial environment, “common sense” can badly mislead the beholder.

In the real world, outside of Kavanaugh’s bubble, Latinos are represented in every aspect of America’s social, professional, and business worlds. The mere fact that they are of Hispanic descent, speak Spanish, speak English with an accent, or choose to live or work in specific locations does not create a constitutional basis for detaining them.

Kavanaugh’s concurrence has no legal force. But it is bound to be brandished by bigots and white nationalist’s everywhere—including among ICE—to justify their unlawful detentions of Latinos. They will quote Justice Kavanaugh that “it is just common sense” that a Latino in Los Angeles is in the US illegally.

As Justice Sotomayor wrote in her dissent,

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.

The Supreme Court’s decision in Noem v. Vazquez Perdomo aligns perfectly with the bigoted, racist views of white nationalists—i.e., using indiscriminate detentions of Latinos based on how they “look” and “sound” to intimidate them and suppress their votes. The decision will live in infamy alongside Dred Scott as one of the most shameful acts in our nation’s history.

Coda

On the same day that the Supreme Court authorized racial profiling, the Court issued a second “shadow docket” opinion that allowed Trump to fire an FTC commissioner—in contravention of 90 years of settled precedent. See SCOTUS Blog, Supreme Court permits Trump’s firing of FTC commissioner to remain in place.

As explained in SCOTUS Blog,

[Justice] Roberts did not provide any explanation for his order. But the order suggests that a majority of the justices may be skeptical of the continued vitality of the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, upholding a federal law that only allows FTC commissioners to be removed for “inefficiency, neglect of duty, or malfeasance in office.”

This decision is another step in eradicating congressional oversight of the executive branch—a longstanding feature of the “checks and balances” of the Constitution. More on this story tomorrow.

Coda Part II

The Harvard Crimson newspaper has reported that the Trump administration is simply ignoring court orders to release funds that are being illegally withheld in violation of the Impoundment Control Act and Article I, Section 9 of the Constitution. See The Harvard Crimson, Harvard Was Cleared To Get Some Federal Funds. Then DOGE Stepped In.

Why does this matter? The Trump administration continues to flout court orders because it believes the reactionary majority will bail out Trump. Given today’s rulings (and many prior rulings) that is a reasonable conclusion by Trump.

Trump suffers a massive blow to credibility in the Epstein investigation

Trump denied a Wall Street Journal report in July of this year that Trump sent Jeffrey Epstein a lewd and potentially incriminating birthday card. Per the WSJ’s report, the card included an imaginary conversation between Trump and Epstein in which the president suggested that the two are “similar” and share a “secret.”

On Monday, the Epstein estate provided the “birthday book” to the House Oversight Committee. Democrats on the Committee immediately released an image of the birthday card—confirming the WSJ reporting and proving Trump to be a liar (again). See CNN Politics, Trump’s Epstein letter denial just suffered another huge blow.

Trump, JD Vance, and Karoline Leavitt taunted the WSJ, saying that the Journal did not have a copy of the card because it does not exist. When faced with a copy of the original birthday card from the Epstein estate, Trump and Karoline Leavitt continued to claim that the birthday card does not exist.

The Wall Street Journal has published a detailed analysis of the card, its syntax, line art, and Trump's signature. The analysis seems to have been prepared by WSJ lawyers in response to Trump's $10 billion defamation claim against the Journal.

The Journal’s analysis is here, and is accessible to all: A Visual Breakdown of the Trump Birthday Letter to Epstein.

Take the time to read the WSJ article. There is little doubt that Trump sent the birthday card, signed it, prepared the art, and drafted the contents.

Will the fact that Trump has been caught in yet another lie—this time about his relationship with Epstein—matter to his base?

That’s the wrong question. The right question is this: Will it matter to enough independents and members of his base to make a difference in the 2026 and 2028 elections? I believe the answer is “Yes,”---a fact that does not diminish our challenge or our need to give everything we have to defeating Trump's candidates in 2026 and 2028.

Speaker Mike Johnson walks back claim that Trump was “an FBI informant” regarding Epstein.

Last week, Speaker Mike Johnson was asked about Trump's statement that the Epstein scandal is a “hoax.” Johnson claimed that Trump does not believe it is a hoax and then went on to say that Trump “was an FBI informant” acting against Epstein.

On Monday, Johnson walked back the statement that Trump was an FBI informant, saying that he did not use “the right terminology.” See Politico, Johnson says he didn't use ‘right terminology’ in calling Trump an Epstein ‘informant’

In a “clarification” by Johnson’s office, the Speaker now claims:

“Donald Trump — who kicked Epstein out of Mar-a-Lago — was the only one more than a decade ago willing to help prosecutors expose Epstein for being a disgusting child predator.”

I continue to believe the kernel of truth in Speaker Johnson’s statement is that Trump was interviewed by the FBI. The FBI asked questions, took notes, and may have made observations regarding Trump's veracity or complicity. The “Epstein files” contain the FBI agent’s Form 302, which is the official record of the interview.

My inference, if correct, explains Johnson’s claim that he “didn’t use the right terminology” about Trump speaking with the FBI regarding Epstein. Trump was likely a witness but also could have been a subject or target of the investigation. We won’t know until we see the Epstein files and can determine if Trump was interviewed.

So, if anyone knows how to get a message to the NYTimes White House press pool reporter, I suggest asking Karoline Leavitt or Donald Trump the following questions:

• Did the FBI interview Trump about Epstein?

• If so, why won’t the president agree to release the FBI Form 302, which is the official record of the interview?

Opportunity for Reader Engagement

I received this note from reader Sarah O’Neill, pitching a novel plan to contest every seat in Virginia—thereby diverting Republican resources from potentially “flippable” seats for Democrats. See Sarah’s note below:

Help win close Virginia elections this fall by donating any amount to these 27 heroic VA candidates here.

David Pepper and Jess Piper helped start a movement to have every district, even the reddest, be contested now in every state. Here’s why it’ll help VA:

This group of 27 Virginia Democrats are running against Republicans in “safe" red districts that usually go uncontested. Lobbyists and corporate business interests lard those “safe" GOP campaign accounts with gratuitous donations. Then those campaign accounts are used as “pass-throughs” and spent to defend vulnerable (R) seats, and attack vulnerable (D) seats.

Applying the “slightest token pressure” to these 27 safe GOP incumbents can create a massive shift in their late-cycle resource allocation. If the 27 (D) challengers on this page each have $3k coming in now, that could result in a significant Republican cash being sequestered back into their safe districts, and away from our pick-up/flip opportunity districts.

Concluding Thoughts

In response to my comment yesterday that there were 44 million Democrats opposing Trump, I heard from many independents and Republican anti-Trump voters who are also part of the resistance and want to be recognized!

Those readers are correct. It is a mistake to look at US politics through a binary lens. The American electorate is much more nuanced and complicated than portrayed by the media. And I fell into that trap yesterday. So, to set the record straight, it is not just Democrats who are resisting Trump. It is Americans of every political affiliation who are rising to the defense of the Constitution and the rule of law. We stand shoulder to shoulder in the battle!

An article in The New Republic caught my eye: Trump Is a Weak and Failing President, and It’s Time to Say So.

The article attempts to reconcile the universal decline in favorability on nearly every metric while Trump continues to consolidate authoritarian power. It is a thoughtful discussion worth your time. In the end, I believe the answer is simple: The Supreme Court is letting Trump get away with it—the “it” being the consolidation of power.

However, the article also provides a comprehensive examination of Trump's polling and weaknesses, issue by issue. One of the most interesting findings is that Trump's “tough guy” act regarding tariffs is falling flat. Why? Because most Americans see Trump's tariffs not as “tough” but as “reckless.”

Here is an excerpt:

By the way, many other polls support those findings. Pew, Fox, Gallup, and Quinnipiac have all found approval of Trump’s tariffs and/or handling of foreign trade mired in the 30s. A pollster aligned with Republicans recently warned that huge majorities believe tariffs are making inflation worse.

What’s notable about this Democratic polling, however, is that it suggests many voters expressly do not see the tariffs as an act of strength, as an act of protection. Instead, they view him as being “reckless”—he’s floundering around wildly, aimlessly, and destructively.

Trump is a one-trick pony, and that trick consists of pretending to be a tough guy. However, the tough-guy act doesn’t work when it imperils the ability of families to put food on the table.

Rather than retreat, Trump will double down on illegal tariffs, accelerating his spiraling unfavorability. None of this means we can relent, but it should help us see the path forward in a noisy media environment.

Stay strong! Talk to you tomorrow!

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