SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
5
#000000
#FFFFFF
brett kavanaugh
With the Perdomo Decision, the Supreme Court's Republicans Are Enablers of Racism
The shadow-docket ruling means ICE will be free to ramp up its roving masked raids in Los Angeles and other cities like Chicago, Baltimore, and Washington, DC. There are no longer any safe zones.
Sep 19, 2025
In what may be its most reactionary ruling since Plessy v. Ferguson, the Supreme Court decided on September 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 US 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.
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, DC. 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% 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, US 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 US 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 LA 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.
Keep ReadingShow Less
The Supreme Court Has Effectively Resuscitated Dred Scott
By choosing to ban nationwide injunctions in response to a case challenging Trump’s order to end birthright citizenship, the court’s conservative majority put all of our rights at risk.
Jul 02, 2025
The 14th Amendment guarantees that all children born in the United States are citizens. It aimed to undo the notorious Dred Scott ruling, which held that some people born here—Black people, to be precise, free and formerly enslaved—nevertheless were not citizens. As you’ll recall, just hours into his term, President Donald Trump signed an executive order purporting to end birthright citizenship. The order was, and remains, unconstitutional.
The Supreme Court chose this case, out of all the possible cases, to strip judges of a key power used to stop illegal actions.
Instead of ruling on the merits in Trump v. CASA, the justices chose to rule on the legality of universal injunctions, among the strongest tools that lower courts use to block flagrantly unconstitutional policies like these from taking effect while cases play out. These injunctions grant relief not only to the person who brought a lawsuit, but to all affected by the ruling. Instead of every soon-to-be parent affected by the order having to bring a lawsuit to secure citizenship for their baby, only one litigant would have to obtain a universal injunction—guaranteeing relief from an unconstitutional order for all. The six justices of the conservative supermajority decided that such rulings go beyond the power of federal courts when they’re not necessary to give the plaintiffs themselves full protection of the law.
While this Supreme Court may be frozen in 1789, we must think anew and act to ensure the protection of birthright citizenship and so many other constitutionally recognized rights.
By allowing Trump’s order to partially take effect in 30 days absent further action by the lower courts, the court has effectively resuscitated Dred Scott, at least for some people, at least for now.
In her dissent, Justice Sonia Sotomayor warned, “No right is safe in the new legal regime the court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”
We at the Brennan Center are still analyzing the ruling. It’s vague at key points. In some respects, it is as great a gift to executive overreach as last summer’s ruling on presidential immunity. On the other hand, alternative avenues to obtain nationwide relief from illegal conduct remain.
Let me share several thoughts.
First, and most obviously: This is one more example of the Supreme Court enabling executive overreach at a time when checks and balances are profoundly strained.
These nationwide injunctions pose complex issues. I have warned about the damage a single judge can do with a gavel and a grudge. Nationwide injunctions blocked key Biden administration initiatives, such as on student loan relief and climate change, and many of Trump’s actions in his first term. Oddly, the Supreme Court had never before ruled on the practice, despite many opportunities to do so during the Biden administration. One could have imagined a decision now that set out sharp limits. Instead, with this decision, these justices have once again gone much further than the case required.
Second, the court purports to give litigants other ways to broadly challenge illegal actions—but these may be flimsy, even sneaky. People can file a class action lawsuit, for example. Maybe. I was a class action plaintiffs lawyer before I came to work at the Brennan Center. Those lawsuits are cumbersome, expensive, and slow, and they must overcome barriers erected by very conservative judges (and the business lobbyists who backed them for their jobs).
Then there is the question of which judges have had their power stripped. The ruling seems to apply only to lower court judges... but does it? For example, if the administration were to defy the Supreme Court, would the court itself still have the legal authority to enforce its own orders to protect everyone affected? That would, after all, require a universal injunction.
Justice Brett Kavanaugh wrote a concurring opinion, which sought to reassure: Of course the Supreme Court could still take bold action when needed. Some read that as reassuring. Others note that he is just one justice. There’s a reason this appears in a concurring opinion. Kavanaugh may not have been able to bring any of his supermajority colleagues along with him. Even if true, as Ruth Marcus explained in The New Yorker, that means the court “sided with Donald Trump over the judiciary.”
All of which brings us to the third point: The courts, alone, will not save us. In banning universal injunctions, the Supreme Court relied on an originalist interpretation of the Judiciary Act of 1789. (Sotomayor noted that it amounted to “freezing in amber the precise remedies available.”)
Congress, in other words, wrote the law being interpreted—and could write a new law to clarify what powers federal judges hold when confronted by executive branch lawlessness.
Presidents of both parties have pushed to expand their power, though none as brazenly as Trump. And Congress has settled into torpor, failing over and over to perform its constitutional role.
After this period of institutional demolition will come a moment of reform and renewal. When it does, we should ensure that remedies make it possible to hold lawless presidents accountable, along with addressing issues such as campaign finance and voting rights.
While this Supreme Court may be frozen in 1789, we must think anew and act to ensure the protection of birthright citizenship and so many other constitutionally recognized rights. In the meantime, we must give our full support to efforts to hold this administration accountable through the courts, using any and every tool that remains.
Keep ReadingShow Less
Trump White House Limited 'Sham' FBI Kavanaugh Probe, Senate Report Confirms
"The Trump White House exercised total control over the scope of the investigation, preventing the FBI from interviewing relevant witnesses and following up on tips," reads a new report.
Oct 08, 2024
"Our suspicions are confirmed," said one veteran women's rights advocate on Tuesday after a U.S. Senate report was released on former Republican President Donald Trump's suppression of a federal probe into Supreme Court Justice Brett Kavanaugh.
Sen. Sheldon Whitehouse (D-R.I.) released a report after an investigation that he said took six years to complete due to a lack of access to Federal Bureau of Investigation correspondence and officials, but that ultimately revealed the Trump White House "exercised total control over the scope" of the FBI's investigation into allegations that Kavanaugh had committed sexual assault.
The report was released as U.S. voters in some states have already begun heading to the polls to vote in the 2024 election, in which Trump is running for a second term.
Whitehouse launched his investigation in 2018 after Kavanaugh was confirmed to the Supreme Court—a major victory for the far right as it sought to gut federal abortion rights, which the justices did in 2022. Kavanaugh's confirmation followed allegations of sexual assault made by Christine Blasey Ford, who testified at an explosive hearing, and Deborah Ramirez, a Yale classmate of the judge.
A supplemental background investigation into Blasey Ford's allegations was begun by the FBI in response to the allegations, but the probe failed to uncover corroborating evidence for Blasey Ford's claims—a fact that several senators cited when explaining why they voted to confirm Kavanaugh despite the accusations against him.
Whitehouse's report found that the supplemental background investigation was "flawed and incomplete"—criticisms that were shared by Democratic senators and rights advocates at the time—and furthermore, that Trump's claim that the FBI would have "free rein" over the probe was a "sham."
"The Trump White House exercised total control over the scope of the investigation, preventing the FBI from interviewing relevant witnesses and following up on tips. The White House refused to authorize basic investigatory steps that might have uncovered information corroborating the allegations," reads the report, titled Unworthy of Reliance.
The report confirms that the FBI received more than 4,500 calls and electronic messages about Kavanaugh, but on instructions from the White House, officials forwarded the tips to the Trump administration "without investigation."
"If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information," said Whitehouse.
The report found that the FBI interviewed only 10 people before concluding the supplemental background investigation on October 4, 2018, two days before Kavanaugh was confirmed by an historically narrow margin.
The people interviewed by the FBI had "firsthand knowledge of the allegations," but agents did not speak to "the witnesses potentially with the most firsthand knowledge"—Blasey Ford and Kavanaugh.
"Sometimes having what you know confirmed doesn't make it better," said Ilyse Hogue, former president of NARAL Pro-Choice America, now called Reproductive Freedom for All. Hogue and other reproductive justice advocates sounded the alarm in 2018 that the FBI's probe was "a total joke" that "disregarded women."
With the Trump administration circumscribing the FBI investigation and prohibiting officials from following up on leads, said Whitehouse, "senators cast their vote on the confirmation of a Supreme Court nominee credibly accused of sexual assault by multiple women on the basis of a truncated and incomplete investigation about whose scope the senators had been misled."
Debra Katz, a lawyer for Blasey Ford, applauded Whitehouse's probe and called for the Office of the Inspector General at the FBI to investigate the "sham" that took place in 2018.
"The congressional report published today confirms what we long suspected: The FBI supplemental investigation of then-nominee Brett M. Kavanaugh was, in fact, a sham effort directed by the Trump White House to silence brave victims and other witnesses who came forward and to hide the truth," said Katz and Lisa Banks, another attorney who represented Blasey Ford.
Whitehouse said his investigation showed how the FBI's supplemental background investigation process "can be easily manipulated," and "would benefit from greater transparency."
"The FBI and White House should implement clear, written procedures that apply uniformly to the conduct of supplemental
background investigations—or at least to situations like the Kavanaugh nomination, where major allegations of misconduct surface after a nominee's initial background investigation is complete," reads the report. "Only then can the Senate be assured that a supplemental background investigation is used to gather rather than suppress information."
Keep ReadingShow Less
Most Popular