Blind justice no more: The Supreme Court has sanctioned racial profiling 

The Supreme Court’s 1954 Brown v. Board of Education decision was both a legal and cultural earthquake. It sent a powerful message that racism would no longer find refuge in the American Constitution.

Of course, Brown couldn’t ensure that race prejudice would disappear from this country or even from public education. Nor could it prevent racism from rearing its ugly head in other areas of American life.  

It was nonetheless stunning to read the court’s Sept. 8 decision allowing Immigration and Customs Enforcement agents to resume using “people’s apparent race or ethnicity; the fact that they speak English with an accent or speak Spanish; their presence at particular locations like farms or pickup sites for day laborers; and the type of work they do to decide who to stop and detain.”

In the post-Brown era, much racial discrimination was driven underground, hidden in a fog of facially neutral standards that sort people on the basis of race without ever mentioning it. But not in the Trump administration, whose constitutional philosophy is to openly ignore the document, unless or until the Supreme Court stops it from doing so.

In the ICE case, the court did just the opposite, staying out of the way while the administration turns the Constitution on its head. 

The decision was all the more surprising given the court’s fanatical attachment to the idea that our Constitution is and must be, “color-blind.” Recall what Chief Justice John Roberts said in 2007 in a decision that limited the use of race in school integration plans: “The way to stop discrimination on the basis of race is to stop discriminating based on race.”

In 2023, Roberts led a majority of his colleagues in striking down affirmative action in higher education, requiring that college admissions ignore the race of applicants. As Roberts noted, “Proponents of the Equal Protection Clause" described its foundational principle as barring "distinctions of law based on race or color.’”

The Supreme Court’s MAGA majority seems to find constitutional principles useful or not depending on the ends they serve. Never has that been clearer than in its decision to condone racial profiling by ICE agents.

Millions of Americans speak Spanish or have Spanish accents. If the government can target them, it can profile anyone.

Make no mistake, racial profiling allows the government to rely on stereotypes that are “grossly irrational.” It subjects people to the indignity of having their race treated as a surrogate for criminality. This is, sadly, not the first time the Supreme Court has allowed race to be a factor in the immigration context.

Fifty years ago, it held that factors such as a person's "apparent Mexican appearance" could be used in determining whether to stop a vehicle to determine if its occupants were in the country legally. But in that case, the government did not claim that it could use race as a primary factor in determining who to stop, arrest or detain.  

In the case it decided last week, plaintiffs argued that ICE agents in Los Angeles did not have reasonable suspicion to stop and search people. Last July, Federal District Judge Maame Ewusi-Mensah Frimpong agreed with them and issued a temporary restraining order to stop ICE. 

The Supreme Court stayed implementation of that order. Operating on its “shadow docket,” the court offered no explanation for its decision to do so. Only Justice Brett Kavanaugh explained his views.

Ignoring the reality of what has been happening in Los Angeles, he said that ICE sometimes makes “brief investigative stops” and “promptly” lets those it stops go if they are in the country legally. Such stops, he wrote, “have been an important component of U.S. immigration enforcement for decades,” as if that makes them okay.  

“To be clear,” Kavanaugh continued, “apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ in assessing the 'totality of the circumstances.'” 

Justice Sonia Sotomayor would have none of Kavanaugh’s head-in-the-sand blather. In her view, because of what Kavanaugh and others in the majority decided, millions of people will now “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.” 

“The government, and now the concurrence,” Sotomayor explained, “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.” 

That sounds suspiciously like the warped reasoning of a police state. It is a tragedy that the Supreme Court would allow it, even for a minute.  

The justices who decided Brown would have been repelled by the thought that their successors would someday turn a blind eye to the kind of pernicious use of race that Sotomayor describes. We will all need to stand with the people whose race is now being used against them, regardless of our own race. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.