SCOTUS, ICE Raids & The Matter of Facts

There is a lot one can say about today’s Supreme Court order lifting the stay issued by a federal district court in Noem v Vasquez Perdomo,[i]. This is the case that challenges the constitutionality of DHS immigration raids in California in which officers appear to rely on racial and language profiling to justify stops and arrests of suspected undocumented migrants. The District Court issued a stay, pausing the raids while the merits of the Administration’s policy are litigated. The Trump Administration of course appealed the stay order. Today the Supreme Court lifted the stay, allowing the raids to continue during the pendency of the litigation.

It’s important to note that the Court lifted the stay without explaining its rationale for doing so – another consequential decision on the Court’s “shadow docket,” that defers to President Trump’s policy decisions before a full trial on the merits. But what we do have is a “concurring opinion” offered solely by Justice Kavanaugh. And it is a doozy.

Here’s Kavanaugh’s recitation of the practices that have been challenged by the plaintiffs in this case. He assures us that:

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 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 initiative the process for removal.[ii]

Every aspect of this description is belied by the reality that appears on our televisions and online every day. But who are you going to believe – Justice Kavanaugh or your lying eyes? Kavanaugh’s description reads as though it were downloaded from the Department of Homeland Security’s website. Almost every word of this is preposterous. “Brief investigative stops” at places where undocumented immigrants are likely to work? What we have seen repeatedly are not “stops.” They are grabs and kidnapping. Most often, no questions are asked. Even when colleagues have insisted that the person targeted by ICE agents are here legally, or that they are citizens, ICE agents proceed to tackle, beat, cuff, and spirit away individuals they have targeted. And we have seen migrants detained and forcibly taken into custody as often in courthouses after immigration hearings, or in neighborhoods cutting lawns as at Home Depot.

Kavanaugh’s claim that if ICE officers learn that you are in the country legally the officials “promptly let the individual go”? Really? Is three months “prompt”?[iii] Two months?[iv] One month?[v] Does he care at all what ICE detention is like? Does he know what 24 hours in those facilities are like?

That Kavanaugh could so haplessly could make this statement just days after South Korean nationals authorized to work as engineers at a Georgia EV battery plant were arrested, shackled and taken into custody by ICE after an immigration raid in what has become an international incident, demonstrates how utterly out of touch he is.[vi]

Kavanaugh assures us that it is no problem to be apprehended, taken to a facility – perhaps several states away – until you can prove that you are a legal resident or citizen. This is his idea of democracy – a country in which citizens and legal residents who are Black, Latino or Asian, and who happen to work in “locations where people are hired for day jobs” must carry proof of citizenship (their “freedom papers,” if you will) or risk apprehension by masked thugs who will hold them perhaps for months.

The fantasy world Kavanaugh describes is the kind of world in which clueless white men (or deliberately obtuse white men) in positions of power were permitted to languish before the Civil Rights Movement brought the reality of life for marginalized people into American living rooms in technicolor. Indeed one wonders whether the conservative justices on the Court watch television channels where they might see what ICE raids really look like.

But we shouldn’t need television. We have trial court proceedings. They allow judges to be exposed to realities they otherwise do not know. Through complaints and answers, testimony and evidence, judges actually learn. For civil rights lawyers, trials are essential tools of education for judges who are ignorant of, or actively resistant to the truth about racism in this country. We know that without the annoying inconvenience of facts, justices can create the kind of world Kavanaugh flagrantly manufactures. A world in which ICE agents respectfully “inquire” about legal status during “brief stops.” Without facts (and sometimes photographs) they can decide that a football coach offered “a quite prayer of thanks…while his students were otherwise occupied.”[vii] They can decide that Asian American students are harmed by race-conscious admissions.[viii] They can claim that a “Muslim ban” isn’t a Muslim ban.[ix]

Facts make it difficult. And this, I’m convinced, is why the conservatives on the Court have all but declared war on district court judges. Trial courts are mucking up the works for a majority bent on the outcomes it prefers. Inconvenient facts expose the game.

Just contrast Justice Kavanaugh’s concurrence with Justice Sotomayor’s dissent in Noem v Vazquez Perdomo. Both are Supreme Court justices who are supposed to be experts in “what the law is.” They are not factfinders. But that does not mean that facts are irrelevant. Facts are especially important when the Supreme Court is deciding whether to lift an injunction. Evaluating that question requires the Court to “balance the equities” of the two parties. SCOTUS justices have always been well-able to assess the potential harms to the U.S. government. Most of them have done a turn as government lawyers in the past. But often SCOTUS justices are blithely unaware of the consequences and effects of government policy and decisions on the lives of ordinary people who may appear before them in these cases.

Justice Sotomayor engages this evaluation carefully – forswearing the official story of how immigration raids are conducted, to pull from the evidence before the District Court about how these raids take place. Her recitation of the violent encounters during these ICE raids is critical to understanding what is at stake for those who are the targets of ICE activity. Masked agents jumping out of cars and grabbing every person who looks Latino on a job site or outside a Home Depot, violently subduing the individuals and taking them away is the stuff of nightmares – not of democracy. Sotomayor recognizes the “’panic and fear’ across Los Angeles,” as Latino U.S. citizens feel the need to carry their passports and fear picking up their children from school.[x]

The facts matter for the Court’s standing analysis as well (the determination of whether the plaintiffs are properly before the Court as injured and interested parties). Kavanaugh says that it is unlikely that the plaintiffs in this case – Latino U.S. citizens who work in the categories of workplaces targeted by DHS – can satisfy that they have standing to bring these claims. Citing one of the most discredited standing decisions ever issued by the Supreme Court, City of Los Angeles vs. Lyons[xi], Kavanaugh tells us that “[w]hat matters is the ‘reality of the threat of repeated injury,’ not ‘subjective apprehensions.’” (J., Kavanaugh, concurring at 4, citing Lyons at 107, n.8).

Leaving aside for a minute the utter embarrassment of refreshing the Lyons decision which, to coin a phrase was, “gravely wrong on the day it was decided,”[xii] the scenario that undergirded the Court’s standing analysis in Lyons is simply not on all fours with this case. As Justice Sotomayor points out, it is one thing to fear that you may be pulled over by law enforcement and encounter an officer who would, in violation of the department’s policy, apply a chokehold. Here the racial profiling, and violent, random arrests are the official policy of DHS. The encounters at issues are not aberrations. They are conducted with the full support and authorization of DHS leadership. The findings “show that the plaintiffs, by doing nothing more than going to work every day, are likely to be seized by agents who are targeting their specific workplaces in accordance with government practice.” (J. Sotomayor concurring at 15).

I am reminded when I read Justice Kavanaugh’s tone-deaf opinion in this case of what Justice Byron White said in a tribute to Justice Thurgood Marshall about how Marshall’s presence influenced the Court’s conferences: “he would tell us things we know but would rather forget, and he told us much that we did not know due to the limitations of our own experience.”[xiii] The work of trial courts can do the same. But the conservative majority on this Court believes they have no limitations. Instead the insistence of federal district courts in doing their job – eliciting facts that are relevant to the case at hand, facts that courts may not know or would rather forget and applying them to the law – has provoked from the conservative majority a series of rebukes, and a concerted campaign to discredit the legitimacy of the work of the trial courts. Kavanaugh ham-fistedly piles on that project here as well, purporting to remind us of the “proper role of the Judiciary.”

We can take some comfort from the fact that none of the five other conservatives on the Court signed on to Justice Kavanaugh’s unfortunate concurrence. But at least four of them must have agreed with Kavanaugh’s ultimate conclusion that the stay should be lifted. That decision required a determination by at least five of the justices that the second-class citizenship imposed on citizens of color who now must accept that their status may be considered illegitimate by their government until they can prove otherwise, and that they must accept being seized by masked men and women, and detained perhaps for months on end until officials are satisfied of their citizenship - is not an irreparable harm that outweighs President Trump and Stephen Miller’s anti-immigrant zeal.

And that makes this a terrible decision. It is a watermark in the dissolution of what we had come to believe we had a right to expect as citizens in a democracy.

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[i] https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf, 606, U.S. __(2025).

[ii] Id. Slip Opinion at 2. (J., Kavanaugh concurring).

[iii] https://www.nbcnews.com/news/asian-america/ice-releases-health-worker-us-legally-50-years-rcna209975

[iv] https://www.wgbh.org/news/local/2025-05-09/ice-releases-fabian-schmidt-n-h-green-card-holder-in-detention-for-2-months ; https://www.king5.com/article/news/local/maximo-londonio-released-two-months-ice-detention/281-16aa9148-9e04-4acc-8448-00d1ff615d1d

[v]https://www.nbclosangeles.com/news/local/u-s-citizen-who-says-he-was-held-in-ice-custody-for-more-than-a-month-wants-accountability/2780842/

[vi] https://www.washingtonpost.com/world/2025/09/08/south-korea-us-immigration-raid-tensions/

[vii] https://supreme.justia.com/cases/federal/us/597/21-418/#tab-opinion-4601251

[viii] Fisher v. University of Texas, 570 U.S. 297 (2013) (J., Thomas, concurring). In subsequent trials in SSFA v. Harvard & University of North Carolina, district courts found that race conscious admissions do not discriminate against Asian American students. https://www.harvard.edu/federal-lawsuits/wp-content/uploads/sites/17/2025/09/gov.uscourts.mad_.283718.238.0_1.pdf

[ix] Trump v. Hawaii, 138 S.Ct. 2392 (2018).

[x] (J., Sotomayor dissenting at p. 2-4).

[xi] 461 U.S. 95 (1983).

[xii][xii] Trump v. Hawaii, 138 S. Ct. 2392 at 2423 (2018) (referring to the infamous Korematsu case).

[xiii] Byron White, A Tribute to Justice Thurgood Marshall, 44 Stan.L.Rev. 1215, 1216 (1992).