Amicus with Dahlia Lithwick | Law, Justice, and the Courts

Episode Summary: Dear Justice Kavanaugh, “I’m American, Bro”

Date: September 13, 2025
Host: Dahlia Lithwick
Guest: Ahilan Arulanantham, UCLA Law, Center for Immigration Law and Policy

Overview of Main Theme

This episode examines a recent Supreme Court order in Noem Vasquez Perdomo, which permitted a once-impermissible form of racial profiling by roving ICE patrols in Los Angeles. Dahlia Lithwick and her guest, Ahilan Arulanantham—a veteran human rights lawyer—explore how the Court’s unexplained decision enables state violence and blurs the line between immigration enforcement and the suppression of U.S. citizens’ civil liberties, particularly people of color. The discussion critically analyzes Justice Brett Kavanaugh’s lone concurrence, its factual and legal flaws, and the broader implications for law, citizenship, and the escalation of state power.

Key Discussion Points & Insights

1. Current Legal and Social Status Quo

• Host Framing: The rise in authorized state violence, encompassing actions against migrants, asylum seekers, and U.S. citizens, is being greenlit by Supreme Court doctrine, often without full explanation or transparency.
  • “This was another week teeming with political violence in America…” (00:57)
• Distinctiveness of Immigration Law:
  • Ahilan notes U.S. immigration law offers far fewer protections than other legal regimes:
    • Immigrants in detention don’t have the right to a government-appointed lawyer.
    • Immigration detention is often indistinguishable from criminal incarceration.
    • Increasingly, citizens are ensnared alongside non-citizens, especially Latino U.S. citizens in LA.
  • “One of the things about this case is it’s not just about immigrants, it's about citizens... several million U.S. citizens of Latino descent in Los Angeles.” (07:20)

2. On-the-Ground Impact of ICE Raids

• Personal Anecdote:
  • After an ICE operation at a park in Pasadena, the city canceled all weekend park activities due to community fear (09:38).
  • “Fruit vendors and swap meets and Home Depots... these are all just sort of daily aspects of life. ...And ICE officers were just running up and arresting those people, and so they disappeared from the streets.” (11:11)
  • The fallout was widespread:
    • Workers (including documented and undocumented) and families lost normalcy, economic opportunities.
    • Local governments tried to offer cash assistance due to lost work.
  • Memorable quote:
    “People are getting detained for long periods. They're getting physically attacked by the ICE officers and it's scary. It's not a brief questioning—that's outrageous. ...All the soccer games get canceled and all the swimming and all the... kids, you know, would do on a hot weekend in the summer get stopped.” (09:38–13:57)

3. District Court’s Findings and Legal Landscape

• Strength and Specificity of Evidence:
  • Detailed factual record showed ICE using “race, language, place of work, and location” to detain people without individualized suspicion (14:41).
  • Notable that U.S. citizens were repeatedly detained.
  • Use of Spanish as an enforcement trigger highlighted as factually and culturally baseless—and racist.
  • “ICE officers are detaining people without individualized suspicion... using some combination of four things: race... language... place where they're working... and then also just the location where they were.” (14:52)
• Ninth Circuit Panel:
  • Three-judge panel affirmed these findings.

4. Doctrinal Shift on Reasonable Suspicion

• Established Doctrine:
  • Reasonable suspicion must be individualized; cannot be a trait shared by a large swath of the law-abiding population (20:52).
  • “The Supreme Court in the late 60s invents this concept... [allowing] police to engage in intrusive activity... which is not permissible at the founding.” (22:08)
• Justice Kavanaugh’s Concurrence:
  • Takes Trump administration stats at face value (“one in ten LA residents is undocumented”) with no citation (24:35).
  • Relies on “common sense” assumptions lacking statistical or evidentiary support; assumes jobs/behaviors tightly correlate to immigration status.

5. Clash Between Fact-Finding and Supreme Court Reasoning

• Record vs. Concurrence:
  • District court and Ninth Circuit carefully built fact record, which Kavanaugh’s concurrence ignores in favor of generalizations.
  • Key Moment—Kavanaugh’s Language:
    • “Reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a US citizen... that individual will be free to go after the brief encounter...” (27:47)
  • In reality (contrasted with Sotomayor’s dissent): Encounters are violent and can involve prolonged detention and force against citizens (31:02).

6. Powerful Testimony: “I’m American, bro”

• Direct from the Record:
  • Bodycam/video footage included in the record reveals police forcibly detaining a Latino U.S. citizen, ignoring explicit statements of citizenship and causing physical harm.
    • “Look how you got my hand twisted. ...I'm American, bro.” (32:58)
    • “Literally based off of skin color.” (33:02, Guest quoting plaintiffs on the scene)
    • “My homie was born here just because of the way he looks.” (33:06)
  • Notable Moment:
    • This footage and testimony underpin the show’s title, and powerfully demonstrate the reality behind abstract legal doctrine.

7. Legal Reversal on the Use of Race

• Change from Prior Law:
  • Prior to this decision, Ninth Circuit had forbidden use of race even as one factor in stops (based on shifting demographics and doctrinal changes against racial discrimination).
  • Supreme Court's own precedents (e.g. affirmative action) have forbidden use of race—even to help, much less to detain.
  • “You can't even consider race as one factor in deciding whether to admit a college student. But you can detain somebody... based on their race.” (35:43)

8. Standing and Selective Enforcement of Doctrine

• Standing as a Barrier (or Not):
  • Court selectively applies standing doctrine, often strictly for “brown people,” but not for white plaintiffs in cases like affirmative action (40:23).
  • Supreme Court’s logic would prevent even those repeatedly targeted under a government policy from having standing—a marked inconsistency.

9. The Shadow Docket and Breakdown of Law

• The ‘Lawlessness’ of Emergency Orders:
  • The Supreme Court is increasingly issuing major, unexplained decisions on the so-called “shadow docket.”
  • Kavanaugh’s solo opinion isn’t law, but serves as an informal signal—the rules for lower courts and lawyers become guesswork.
  • "We’re now really living in a regime which is literally lawless... edicts like a king... allow[ing] the Trump administration to do what it wants in these cases without law." (45:09)

10. Expanding the “Prerogative State”

• From Immigration to Everyone:
  • The unchecked prerogative powers originally used against immigrants now envelop citizens—especially people of color—in Southern California and likely beyond.
  • “More than half the people in the Southern California region now... are subject to this different regime—that’s not one based on the normative rules that apply to others.” (49:01)

Notable Quotes & Memorable Moments

• On the Reality of Enforcement:
  • “People are getting detained for long periods. They're getting physically attacked by the ICE officers... This is not a brief questioning—that's outrageous.” (11:55, Arulanantham)
• On Lawlessness:
  • “We’re now really 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.” (45:09, Arulanantham)
• Signature Exchange (on video evidence):
  • Plaintiff: “Look how you got my hand twisted. ...I'm American, bro.” (32:58)
  • Commentator: “It just shows how completely divorced from reality What Justice Kavanaugh is saying is...” (33:30)
• On the Creep of State Power:
  • “This move right here extends the prerogative state to people of Hispanic appearance or Latino appearance and who are speaking Spanish, whatever that means.” (49:07, Arulanantham)
• On (Absence of) Law:
  • “There isn’t a simple answer... when you have life under a lawless regime, which is what we’re living under now.” (51:01)

Timestamps for Key Segments

• [00:57] — Opening framing: state violence and political context
• [05:56] — The distinctiveness of immigration law and its exceptional status
• [09:38] — Personal account: ICE raid impacts on daily life in LA
• [14:41] — District court’s detailed factual findings
• [20:52] — Legal doctrine of reasonable suspicion and its erosion
• [27:47] — Kavanaugh's "brief encounter" language and disconnect with reality
• [31:02] — Reading Justice Sotomayor's dissent and vivid case example
• [32:58–33:10] — Plaintiff: “I’m American, bro”—the case’s emotional core
• [35:43] — Contradiction: racial consideration banned in admissions but allowed in detentions
• [40:23] — Standing: double standard highlighted
• [45:09] — State of lawlessness and the shadow docket
• [49:01] — Expansion of the “prerogative state” to encompass millions of citizens

Conclusion

Ahilan Arulanantham and Dahlia Lithwick dissect the Supreme Court’s tacit approval of racial profiling and state violence, exposing a widening legal black hole where both immigrants and citizens fall victim to arbitrary enforcement. They depict a regime where rules, rights, and reasoned decisions are supplanted by unilateral judicial fiat—and underscore the real, human toll of the Court’s shadowy, unexplained grants. The episode urges listeners to recognize the expansion of such powers not as a deviation, but a deliberate choice—one that endangers all who fall outside accepted notions of “Americanness.”

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