Society / September 8, 2025

The Supreme Court Just Gave the OK to Racial Profiling

The court’s ruling allowing ICE to resume its indiscriminate roundups of LA’s Latino residents can only be described as one thing.

Elie Mystal

An art installation that displays black-and-white images of people detained or deported as a result of ICE raids in Southern California.

(Ted Soqui / SIPA USA via AP Images)

On Monday morning, the Supreme Court allowed ICE to resume racially profiling all Latinos in Los Angeles under the suspicion that they might be “illegal” immigrants. The order is technically temporary, allowing racial profiling to happen only until the court reviews the full record, but the Republican justices made it incredibly clear that, whenever the court gets around to voting on the merits of the case, they will still be in favor of racial profiling. The vote was, predictably, 6-3, along party lines, with alleged attempted rapist Brett Kavanaugh as the only justice in the Republican majority who bothered to explain his racist excuse for reasoning.

The case is called Noem v. Perdomo and it has been on the Supreme Court’s shadow docket for months. The issue emerged at the height of Trump’s attack on LA, when multiple citizens reported that ICE was rounding up anybody who was Latino, or looked Latino, for questioning. Racial profiling is unconstitutional (or was, until this morning) and people sued, including the named plaintiff in this case, Pedro Vasquez Perdomo. District Court Judge Maame E. Frimpong (a Biden appointee) issued an emergency injunction prohibiting the raids in July, but the Trump administration appealed that injunction to the Supreme Court.

In a rare example of honesty from this administration, it admitted that it was racially profiling Latinos, and promised to do so again if the Supreme Court lifted the injunction. The government admitted it was only looking at four factors before pulling people off the street:

  • Their apparent race or ethnicity
  • Whether they spoke Spanish or spoke English with an accent
  • The type of location where they were found
  • The type of job they appeared to do

I shouldn’t have to explain how this is racist, but since white Republicans might read this, I guess I do. If you are a white guy, anywhere in LA, you are presumptively “legal” and ICE will not bother you. If you are a Vietnamese woman working at a nail parlor, you are also presumptively OK. If you are a Chinese guy running a dry cleaner, you’re good. Name the race and the racially stereotypical job, and, according to the US government, you are not on their list. At least for now. Obviously, once the government greenlights racial profiling against one group of people, it’s pretty easy for the white people running the joint to support racial profiling against another.

But, for now, the government’s racism is focused on Latinos. If you’re Latino of any description, or if you merely look like you could be Latino, and you speak with a Spanish accent, and you appear to be at a Home Depot or car wash or just waiting for the freaking bus, ICE claims it has “reasonable suspicion” to pull you off the street and demand that you prove your citizenship. It is a literal double standard. Being Latino or looking Latino presumptively makes you “suspicious” to ICE.

And the Supreme Court decided that such racism can continue.

Kavanaugh starts where all the racists do these days, by saying that there are a lot of “illegal” immigrants in the country. He then goes on to estimate that there are 2 million undocumented people living in Los Angeles alone, adding “there is an extremely high number and percentage of illegal immigrants in the Los Angeles area.” But if I could stop Kavanaugh right there, I’d point out that even if he thinks that there are 2 million “illegal” immigrants in Los Angeles, he has not established that they are all Latino. And even if he racistly thinks that there are 2 million illegal Latino immigrants in LA, that’s still only a minority percentage of the 5 million Latinos living in LA. Los Angeles is around 50 percent Latino. Kavanaugh’s treatment of all of them as suspect is the very definition of racism.

And, of course, I don’t have figures on how many people look like they might be Latino. They never gave me the color chart white men use to determine who is “OK.”

Unfortunately, Kavanaugh doesn’t stop at these racist premises. He keeps going with classic bigoted reasoning. Kavanaugh claims that it is just “common sense” to stop Latinos who look like they might be engaged in low-wage jobs and question their immigration status. Again, this is only “common sense” to racist people.

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He then goes on to give the whitest possible read on the situation, by characterizing the stops as no big deal. He says: “Moreover, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.” Yes, Brett, it’s just a friendly conversation with your local masked jackboot. Just a totally polite and harmless conversation where, as long as you answer the questions correctly, you do not end up on a plane to a concentration camp in Uganda. What could possibly go wrong?

Kavanaugh knows he’s lying here. You can tell by his word choices. He says stops are “typically brief,” which means he knows full well that sometimes they are not. He says that people can go free “after making it clear” to the gestapo that they are US citizens, but glosses over what “making it clear” actually means. Does anybody reasonably think Brett Kavanaugh is carrying around proof of citizenship in his wallet? Of course he isn’t carrying his birth certificate around with him. He doesn’t have to. He’s white. He thinks his proof of citizenship is plastered all over his face. Kavanaugh is functionally saying that it’s unreasonable to ask him, a white guy, to prove his citizenship, but it’s totally reasonable to ask any Latino to prove theirs.

In the very next paragraph, Kavanaugh shows that he fully understands what’s going on, but just doesn’t care. He says, “Finally, although the dissent emphasizes the force allegedly used by immigration officers, that is not the issue in this case.” I mean, the pure banality of his evil would be actually laughable if it weren’t so serious. Sure, Kavanaugh says, this “brief” stop followed by “prompt” release can sometimes lead to straight-up brutality against the 5 million people in Los Angeles who might look Latino or speak with a Spanish accent, but such brutality is not his concern in this case, so he can ignore it.

The dissent Kavanaugh referred to was written by Justice Sonia Sotomayor and joined by the other two liberals on the court. She did all she could to rip the racist Republican majority and Kavanaugh a new one. She writes: “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.” She explains that the Constitution “prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that ‘describes a very large category of presumably innocent’ people.”

This decision, from the Republicans and Kavanaugh, is explicitly racist. It explicitly authorizes government harassment of all Latinos based on their phenotype. The government literally admits that its intention is to conduct law enforcement through racial profiling, and Kavanaugh fixes his mouth to call this illegal, unconstitutional, racist law enforcement policy “common sense.”

At some point, the pro-Trump parts of the large and legal voting population of Latino Americans has to reject this abject racism. Republicans could not politically survive this bigotry if overwhelming numbers of Latinos turned out to vote against them. White people will not help, and Black people cannot help, as there are too few of us to flip places like Texas or Florida on our own.

This administration and this court can be stopped. But it’s going to take all of us rising together against the white supremacists like Brett Kavanaugh. Otherwise, it’s just going to be ICE raids all the way down, in a country that turns speaking with an accent into a presumptive crime.

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and a columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution and Bad Law: Ten Popular Laws That Are Ruining America, both published by The New Press. You can subscribe to his Nation newsletter “Elie v. U.S.” here.

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