Supreme Court Justice Brett Kavanaugh's concurrence in a decision allowing Immigration and Customs Enforcement to engage in overt racial and ethnic profiling in California raids gives an insight into the dark way he views civil rights, UCLA Center for Immigration Law and Policy director Ahilan Arulanantham told Slate's Dahlia Lithwick in an interview released Tuesday.
That ruling, issued earlier this month, suspended a lower court's ruling that blocked ICE's "roving patrols" of Los Angeles — and triggered horror from legal experts as the right-wing justices, and Kavanaugh explicitly in his concurrence, authorized a regime where federal officers can stop people solely based on their appearance, language, or profession.
Part of the problem, Lithwick noted, is that because it was an emergency order, part of the so-called shadow docket, the court had no requirement to explain itself in detail.
"It’s hard not to imagine that this order and this concurrence is the Supreme Court effectively greenlighting racial profiling as part of the basis for reasonable suspicion," said Lithwick. "It’s hard to imagine a world in which these roving ICE officers are not now substantially more comfortable saying, 'We’re just using race and language and where you’re standing as the basis for this stop.' This is the paradox of the shadow docket — the court said nothing of the sort, but we don’t know what the law is."
"This is why I strongly believe that the shadow docket is not law," said Arulanantham . "Law is based on reasons, and you have to give reasons ... It’s hard for lawyers to accept this, but we have to accept that we’re now living in a regime which is literally lawless, in the sense that we’re getting these edicts like a king handed down from the Supreme Court, that allow the Trump administration to do what it wants in these cases without law."
This ruling, Arulanantham continued, further cements the growing concept that America is effectively becoming two separate states: the normative state, where the Constitution and all its rights apply, and the prerogative state, where you are a suspicious person and the president can do whatever he wants to you.
"This move right here extends the prerogative state to people of Hispanic appearance or Latino appearance and who are speaking Spanish, whatever that means. It certainly encompasses me if I’m dressed the wrong way and going to play soccer as I do in parks in Los Angeles, even though I’m not in any way Latino in heritage," he said. "So we’re talking about more than half the people in the Southern California region now who are subject to this different regime, that’s not one based on the normative rules that apply to others."
"Kavanaugh’s concurrence is obviously contrary to the preexisting doctrine in this area in so many different ways ... you have to guess, because this is not a law-based regime we’re living under in this context now," he added. "There isn’t a simple answer to the question when you have life under a lawless regime, which is what we’re living under now."
