Dear Justice Kavanaugh, “I’m American, Bro”

Summary

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

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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.

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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)

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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)

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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

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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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Transcript

[A]

This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to [e-mail] podcast or wherever you listen.

[B]

Hey, it's Ryan Reynolds here for Mint Mobile. Now. I was looking for fun ways to tell you that Mint's offer of unlimited premium wireless for $15 a month is back. So I thought it would be fun if we made $15 bills, but it turns out that's very illegal. So There goes my big idea for the commercial. Give it a [e-mail] Switch upfront payment.

[A]

Of 45 dol dollars for three month plan equivalent to $15 per month required new customer offer for first three months only. Speed slow after 35 gigabytes of networks busy taxes and fees extra c mint mobile.com I'm Dalia Lithwick. This is Amicus Slate's podcast about the courts and the Supreme Court and the law. Thank you for being with us. This was another week teeming with political violence in America. Another week in which free speech and guns and respected world leaders raping and trading young girls, the assassination of a major political figure, police brutality against people of color, the military occupation of another American city in the name of law and order, and another school shooting was all just another week. Our show this week will be about authorized state violence against migrants and asylum seekers and US Citizens because of the color of their skin and the language that they speak and where they are standing as authorized by a majority of a Supreme Court that was too embarrassed to even explain itself. But please know that every facet of the Epstein birthday book and the threats of bloody vengeance for the murder of Charlie Kirk and treatment of unaccompanied children in government shelters, the promise of the National Guard being sent into Memphis is all authorized state violence, as is the jurisprudence that permits it. Please don't say this is not who we are. This is who we are. It doesn't have to be who we are, but this is what we choose. On Monday, the Supreme Court issued an order in a case called Noem Vasquez Perdomo that legalized a previously impermissible form of racial profiling done by roving ICE patrols for ostensible immigration purposes. It was done on the Court's emergency docket by a 6 to 3 margin with with no explanation or reasoning or guidance for future courts, Justice Brett Kavanaugh issued a concurrence explaining his own personal views on why this order was valid. It was joined by zero of his colleagues in that concurrence. He explained that roving ICE officers in LA that sweep up US Citizens and lawfully present immigrants because they speak Spanish or they're standing outside a Home Depot. It's all basically no big whoops. It's justified by an exigent need for immigration enforcement that nobody has standing to challenge these raids and that the Trump administration will probably win when the case gets resolved on the merits. For some of these facts, he cited the Trump administration. For others, he cited nothing at all. Astonishing as it may seem, several of the very same justices who won't sign their names to an order are out celebrating the opening of the term with media tours and book sales and speeches about unity and love among jurists. Now, it seems to me that if you are too afraid to sign your name to a judicial opinion, you probably shouldn't get to go into swanky ballrooms to speak platitudes. But this does highlight that, at least among the Court's conservative wing, both the facts and the law are just what you want them to be. Justice Kavanaugh's concurrence is wrong on the facts. It's also wrong on the law, and he writes like a man who's never going to be stopped by law enforcement for the color of his skin or the quality of his English. With a stroke of his pen, he justifies expanding what Professor Aziz Huq explained as the Prerogative State, a legal regime that targets vulnerable outsiders. And he expands it to include literally millions of lawful residents and US Citizens. And he does it without breaking a sweat, because the Prerogative State will never come for him. Our guest today is here to fill in the blank spaces of Justice Kavanaugh's limited understanding of what it means to be an immigrant, a migrant, or even a minority in America. Ahilan Arulanatham is a longtime human rights lawyer and law professor at ucla, where he's the co faculty director of the center for Immigration Law and Policy. Before that, he was a litigator for the ACLU of Southern California for 20 years and a public defender in Texas. He has argued three cases before the US Supreme Court, and I am so thrilled to have him here today. Ahilan, welcome.

[B]

Thanks for having me, Dalia. Really, really glad to be here.

[A]

And I want to start, if we can, with the status quo Because I've heard you say this a lot, and I think it's important that immigration law and the rights that the United States affords to people facing deportation, it is not like other legal regimes in America in terms of the rights you're afforded, how detention operates, which legal system you're even in, how limited your protections really are. And. And I think I've also heard you say none of this is new. Is that a fair statement, just of first principles?

[B]

Yeah, as first principles, for sure. Although I do think your intro is correct to say that the law has changed significantly in practice because of this decision. But yes, you're absolutely right. I mean, the constitutional law of immigration does not look like a lot of other constitutional law. I mean, to start with, you say detention, and that is, of course, the word that's used. But when people are detained in immigration detention centers or sent to prisons and they're run by private prison companies, and, you know, they wear orange jumpsuits and they can't hug their families, and they're often sent very far away from where they're picked up, but they have no right to a lawyer unless they can afford one and have really none of the other protections that, or most of the other protections that attach in the criminal legal system do not attach. So, I mean, that's just one example. There's many ways in which immigration law is exceptional in that sense. And of course, one of the things about this case is it's not just about immigrants, it's about citizens. The name plaintiffs include two citizens. And of course, there are several million U.S. citizens of Latino descent in Los Angeles. And I know we'll get into that, but that's one of the things that's happening with this move, is that it's corroding the line with an immigration law from non citizens to citizens, and also now covering a set of people who are citizens, many of them born in the United States, but they are Latino.

[A]

I love that framing because it's really helpful. And it's a thing we think about all the time, which is you have this one subsystem that is not good, and it's supposed to be directed at one class of people, regrettably. And what you're saying is it's starting to migrate into the way we think about policing, the way we think about freedom, the way we think about all sorts of rights. I think that that notion of sort of erod what was never a bright line anyway, between law enforcement and how we think about immigration enforcement is a nice way to sort of vault us into talking about this case. And I think before we even get to what happens doctrinally Monday at the court, I am hoping that you can describe this new world that we exist in, this shift in the status quo that the Supreme Court just greenlit simply in terms of immigration enforcement and sweeps and harassment of Angelenos. You're there and I'm not. And we've done several shows about the legal and constitutional reality of what it means to put National Guards and Marines and ICE officials into big cities. But I would love to hear from you as a longtime Southern Californian. What are we missing in this larger discourse even before this case comes down, about what life on the ground since Operation at large launches in LA on June 6th of this year. Just paint a picture for me of what that looks and feels like in ways that I think set the stage for what happens in this case.

[B]

I am a long term Southern California resident, as you say. I live in now, the San Gabriel Valley, which is the Pasadena area. And I'll give you a simple example of how fundamentally it's changed things for people. My child plays soccer, she's a nine year old, in parks in Pasadena. And there was an ICE enforcement action one of the weekends before the injunction came down at a park in Pasadena. And you know, San Gabriel Valley I would guess is probably even more than 47% Latino, although I don't know that for sure. Pasadena is within this area called the San Gabriel Valley. Broadly, that was the statistic that was in this record 47% of the people in the central district of California, California, which is LA county, and also surrounding area, identify as Latino. So when an ICE operation like that happens, people run away. There's a report that goes out in a bunch of different ways, local news, social media, all that, that there were ICE officers who arrested a set of people who were selling fruit and then also other people at a bus stop. It's very similar to the action that was in the, that one of the plaintiffs were involved in in the case, but it was actually a separate incident. So then the city of Pasadena canceled all of weekend activity at the parks, which is actually a perfectly reasonable response. If you're there, it makes sense. It's a perfectly reasonable response because all of these people, a huge number of people are scared to go to the parks and they want to protect people from getting arrested because notwithstanding what Justice Kavanaugh says in this concurrence, lots of 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. It's just a completely counter, counterfactual description of what's happening. So then all the soccer games get canceled and all the swimming and all the, like, running in the water fountains and all the stuff that all these kids, you know, would do on a hot weekend in the summer get stopped. And that kind of thing was happening for weeks throughout Southern California in different parts. It wasn't happening everywhere all at once. You know, it's a vast area. There's something like 11 or 12 million people who live in LA County. And this order actually governed. Even broader than that is the entire central district, which includes portions of other counties. But when an ICE operation was happening, they happened all throughout different parts of the city. This is the kind of response that you would get, even addition, sort of. Apart from that, there are a lot of aspects of just daily life in Los Angeles for the people who live there. We, you know, we love. Many people love the city, right? I mean, you love to hate it, but also you love it, right? And fruit vendors and swap meets and Home Depots, you know, where people go to hire people to do, you know, work on their house and obviously where people go to do that work. You know, these are all just sort of daily aspects of life. If you drive around LA in a lot of different parts of la, you know, sort of all times a day, all times of year, but especially when it's hot, you can drive off a bunch of intersections and there are people who sell mangoes and pineapple and other fresh fruit. A lot of those people are Latino and I'm sure some number of them are undocumented, obviously, but. But not all of them. And ICE officers were just running up and arresting those people, and so they disappeared from the streets. Taco trucks, same way. And not just taco trucks, all kinds of food trucks which are all over la. It's a great way you can just kind of pick up really good food very fast. And all of this was just disappearing for weeks. It was just gone from huge swaths of the city. And I expect that that's going to happen now too. You know, I know there have been some raids since the ruling. We haven't seen the full effect, I'm sure, because, you know, administration obviously didn't know exactly when the decision was coming, but it just completely changes the character of the city. And then you have other people who just want to drive to work and they're scared to go to the grocery store. They're scared to go, you know, if you're commuting from one part of the city to the other, which is one of the unfortunate parts of life in la. Lots of traffic, people moving all around, but then they're scared that they're going to get stopped when they get on or off the freeway or on any street. And so they're not going. And we've seen the social effects of that. Local government have talked about that, how they're trying to provide cash assistance to people because they are unable to do their work, because they're scared they're going to get arrested. So it's awful. It's actually awful. The practical effect of what these raids have done to the city.

[A]

And Ahilan, can you walk me through the findings? Because the district court judge in this case did what she's meant to do, right? And she collects a whole bunch of material that pretty much affirms that life is as you've just described it. And she's got sworn declarations and statements that pretty much describe a version of what you've just said that, you know, she issues an injunction in July. What is it that she found was going on for purposes of this case?

[B]

Yes, it's a very detailed factual record, as you say. In fact, a lot of people in Southern California were wondering what was taking so long for the attorneys who brought this case to file it. And I know just a little bit from having talked to them that they wanted to build a very robust factual record, even though it messed that there was probably a week or two longer living under this than was necessary to bring a skeletal case. But they didn't want to do that. You know, they wanted to bring a very detailed case, and they did. What the findings show overwhelmingly, is that ICE officers are detaining people without individualized suspicion that any given individual is here in violation of the immigration laws, and that they're doing it by using some combination of four things. Race, you know, which is to say, like Latino appearance, whatever that means, you know, and obviously it's a. It's a vague concept because race itself is a socially constructed concept. But it's like something like being brown and something about your appearance, language, the fact that people are speaking in Spanish or speaking English in an accent, then the place where they're working. So they were particularly targeting car washes, Home Depots, like I was saying, you know, swap, meet fruit vendors, things like that. And then also just the location where they were. So like being at a bus stop, you know, on the theory that more undocumented people are going to use the bus. And so what they were doing is they were going into places like this and just immediately arresting everyone. And here I use arrest in the popular sense. You know, it's not technically an arrest because you're only detaining the person and putting their hand behind their back and, you know, smashing them to the ground. And that's, in theory, detention and not arrest. But, you know, that's what any common person would think. Oh, yeah, for sure. They're grabbing the people and forcibly moving them and screaming at them and using force against them. And they were doing that indiscriminately for everybody who was in these different locations or fit these descriptions that I was mentioning. And that's what the district court found. You know, there's a mountain of evidence of it. There's particular individuals who've had it happen to them multiple times. One of the name plaintiffs, I think it was four times his car wash had been raided. And on some of those occasions, he himself was detained. He's a U.S. citizen. Another U.S. citizen detained twice and in a. An auto repair kind of area or auto workshop kind of area. And the district court found that there's also just a mountain of evidence of this. Even if you just look at. Even apart from the declaration, just all over social media, because all this is being documented by people on their cell phones with their cell phone cameras. So the district court compiled a very detailed compilation of a lot of this evidence, and it also includes some demographic information. As I mentioned earlier, you know, that 47% of the region identifies as Latino. I think 37% speak Spanish in the home, which means, you know, they could be inclined to use Spanish, you know, just kind of walking around. My child is in Spanish immersion, you know, and I'm. I'm Sri Lankan Tamil origin. And, you know, she's born here. Like lots of people in LA speak Spanish and they speak Spanish out in the world. When I've talked to people in various transactions, just like out in the world, I might speak Spanish if it seems like it's sort of appropriate to do so. So the idea that you can use the use of Spanish as an indicator unlawful immigration status is another among the mountain of examples of just sort of ignorant and in my view, frankly, racist kind of assumptions. In the Kavanaugh concurrence that you mentioned.

[A]

Let'S pause to hear from some of our sponsors. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decision. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and [e-mail] podcast or find it wherever you listen. You know what doesn't belong in Epic Summer plans Getting burned by your old wireless bill. That's why you should switch to Mint Mobile. Even Slate's president Charlie Camemerer is using Mint Mobile and he says it was really easy to switch providers. The SIM card was shipped to his home, they let him use his existing phone and he didn't even have to change his phone number. Say bye bye to your overpriced wireless plans, jaw dropping monthly bills and unexpected overages this year. Skip breaking a sweat and breaking the bank. Get this new customer offer and send your 3 month unlimited wireless plan for just 15 bucks a [e-mail] amicus that's mintmobile.com amicus upfront payment of $45 required, equivalent to $15 per month limited time new customer offer for first 3 months only. Speeds may slow above 35gb on unlimited plan. Taxes and fees extra C Mint Mobile for details let's return now to my conversation with Ahilan Arulanantham. So I want you to do one little bit of lawyering for one quick second, which is I think listeners have a sense of what reasonable suspicion means and what reasonable suspicion means for even for purposes of immigration law. Which is is complicated, but it certainly doesn't come from nowhere. It is not as though Justice Kavanaugh is inventing the wheel here and I would love for you to just do a sort of 101 back of the envelope. What is the doctrine around what counts as reasonable suspicion and what is not allowed to count? Because we've got good case law there too.

[B]

Yeah, specific and articulable facts is one phrase which comes, I believe, from the first case that actually invents this category, which is Terry v. Ohio in 1968, and then in later cases the concept that it has to be individualized, which is the most obvious violation that's happening here. Which is why I say that the Supreme Court or Kavanaugh anyways, tried to dramatically change the law because individualized means specific to the person who is being detained. And courts have even fleshed out individualized to mean something which is not characteristic of a large portion of the law abiding population. So of course, I can look at you and say something about your appearance and the language you're speaking or the color of your hair or something. Those are individualized. But if it's also true of lots and lots of law abiding people, that's not individualized. Individualized means it's something specific and articulable which suggests that this person might be here in violation of the immigration laws. And, you know, since I know there are a lot of legal nerds in your, in your audience, one thing I, I think is important to recognize is that reasonable suspicion and the idea that you can briefly detain people on the basis of reasonable suspicion is actually not an old concept in terms of like originalism, you know, sort of historical constitutional law old. It is from 1968, and it gets extended to car stops and the immigration context in Brignoni Ponce in this case, which is, I believe, 1973. And if you look historically, it's pretty clear there's just two categories. There's arrest on probable cause or there's you leave the person alone and that's it. And the Supreme Court in the late 60s invents this concept, allowing police to engage in intrusive activity, which is not permissible at the founding because they essentially are licensing police to do broader kinds of intrusive law enforcement activity. And the cases that are about, you know, Terry v. Ohio is about black people in an urban area. Brignoni Ponce is obviously about immigration enforcement in the border region. And so it is an ahistorical expansion of state power that happens in the late 60s and early 70s. And that is what at least Kavanaugh is relying on to justify what's happening here. Although this is a dramatic expansion, which I know we'll get into. It's. I mean, this, this is not, it's probably not lawful under even Brignoni Ponce itself, and certainly not lawful under the post Brignoni Ponce doctrine in this area.

[A]

Just to summarize everything you've just said, we have a sort of edifice, albeit fairly recent, that says this counts as reasonable suspicion. This doesn't. And we have, by the way, Justice Sotomayor's dissent is really crisp on this. You know, how this is a departure and it's worth reading. And I think, you know, we've now established we've got a district court Order. Based on an extensive finding, as you say, mountains of evidence, that all sorts of factors are being used. She says you may not use them. Unanimous. Three judge panel at the Ninth Circuit affirms. And then we. It goes to the court. We're gonna talk about the shadow docket in a minute. And then Justice Kavanaugh writes for himself alone. And I know we're here to unpack that opinion, but I need to start by saying that Justice Kavanaugh, in his concurrence, that is a concurrence of 1, right off the bat, is taking the Trump administration's word for it that one in every 10 residents of LA is an undocumented immigrant. He cites no number for this. Let me say this again. There's no citation for where he's getting this. Where is he getting this?

[B]

Yeah. And this part is complicated. I think there's a lot of common sense. I'm using quote marks. I guess your listeners will have to hear those in my voice.

[A]

Ironic quotation marks.

[B]

Yeah. And in fact, he says, I mean, come on, it's just common sense. He literally uses that phrase, like, of course undocumented people will be more likely to do this or that. But there isn't statistical evidence on how many undocumented people work in car washes, work as day laborers. And I mean, I know I've had clients who worked as day laborers and not car washes. But in other work sites, there are citizens working alongside undocumented people in various jobs. It's not a caste system where, you know, only undocumented people do some things and only other people do others. And then, of course, you know, we're talking about citizens and non citizens, but immigration status, people from the immigration world will know this is very fluid. People might be undocumented for a time, but then they file for asylum and now have a work authorization. They may have temporary protected status and not be removable. Then they're not deportable. Those people cannot, under the immigration laws, be detained, and they're working alongside people who do not have that status. You know, it is true that there is a large population of undocumented people in Los Angeles County. You know that that's true. The estimates I've seen suggested something like 1 million out of more than 10 million people in Los Angeles County. Of course, this is a broader area, so it includes others. But it is not, I think, right to assume that therefore, large proportions of people in certain industries are, I know undocumented lawyers, I know undocumented doctors, they're undocumented accountants. The vast majority. Well more than half of the undocumented population, even in the entire country, has lived here for more than 10 years. There are tens of thousands of undocumented university students in higher education throughout the country. So you can't make this kind of generalization as a justification for engaging in arrest.

[A]

You've just said something important, which is, we have factual findings. Our friend Sherrilyn Ifill is always like, this is what a civil rights lawyer does. Right. You just said a meticulous record is constructed in order to say, judge, this is happening. The judge says it's happening. Ninth Circuit says it's happening. Brett Kavanaugh, as we've now just said, has some feelings, and I think it's really, really important to sort of disaggregate the work of what a Supreme Court just. And what a district court judge does, because one of them is supposed to be doing factual findings. The other one apparently is reacting to that. But this is an astonishing sort of shift, as you've said. But I think there's another piece that is almost as horrifying, or correct me if I'm wrong, and that is Justice Kavanaugh's just completely breezy characterization of what an encounter with a roving ICE patrol looks like. And this is where he moves from ignoring facts to just sort of making up his sense of the world. And I just want to quote, because it's quite shocking. And he says this, quote, importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a US Citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter, only if the person is illegally in the United States may the stop lead to further immigration proceedings. End quote. And it is hard to characterize. You've already described what some of these stops look like, but it is hard to characterize how wrongheaded that is at so many levels.

[B]

Yeah. That is one of many places where the opinion seems divorced not just from reality, but also from what is in the record in this case. One of the things which also made my blood boil, you know, as I. As I read that, was this is an injunction against conduct which exceeds what is permissible under his own description that you just read of what the Fourth Amendment permits. So even if you take his opinion as though it's an opinion for the court and say you can use race as a factor to briefly question someone in the way that you just described, but then you have to affirm because the record shows at least affirm in part, you know, maybe you narrow the injunction, but you have to affirm at least in part, because the record shows two named plaintiffs who have been had detained for something much worse than brief questioning, who've had force use against them. And he says, oh well, force is not part of this case. But that doesn't make any sense. The record describes what is part of the case. And if the record shows violations, then the court has authority, actually has duty to enjoin that. So, you know, you know, maybe then you should say, okay, we'll modify this injunction. And what it should say is that they can't engage in these other activities, but they can briefly question, but nothing more than this, but then why are you staying it? You know, then you shouldn't be staying it because it's describing illegal activity. So, yeah, that was one of the many places. And I think the first part of your question about the role of appellate courts, it's important to remember the doctrine here, although, you know, that doctrine does not describe what is happening obviously in practice with what the Supreme Court is doing. But, you know, factual findings, as you say, are made by the district court. They're reviewable only for clear error. So, you know, you're only allowed to reverse a factual finding if you're of an appellate court. If the factual finding is clearly erroneous, that's even on regular review, not on this emergency review. On emergency review, it's supposed to be even more deferential to the courts below. And then they have another doctrine which they've completely ignored now for the last, you know, several months, which is when you have two levels of federal courts, one making the factual finding and the other one, you know, affirming it, then the Supreme Court is supposed to be even more hesitant to reverse it on the theory that now, especially in a case like this one, you have not just the district court making these detailed factual findings, but you have the 9th Circuit in a long opinion carefully reviewing this record and affirming and slightly modifying, but otherwise affirming this injunction. And so then the Supreme Court, you know, which is sits farthest from all the facts, has, you know, the coldest record, is not supposed to go second guessing what multiple courts have done. That's just not true anymore. As a description of what is happening here, the Supreme Court is not behaving that way. They're certainly in immigration cases and a set of other cases happy to second guess and rewrite the facts in cases, including on the shadow docket.

[A]

Aylan I was going to read to you from Justice Sotomayor's dissent. She described. On June 9, immigration agents arrive at a tow yard in Montebello carrying handguns, military style rifles. One of the plaintiffs in this case, a Latino US Citizen, was working on his car in the tow yard that day. A mask agent orders him to stop right there, starts asking questions. Agents ask whether he is an American at least three times. Three times he affirms that he is an American. They asked for the name of the hospital in which he was born. And when he could not immediately recall. They rack a rifle, they take his phone, they push him up against the metal gear, put his hands behind his back, twist his arm. They released him only after he offered up his real id. And then Sotomayor notes that ID was never returned to him. So then we're in this funny position where we are reading Justice Kavanaugh saying this is a, you know, brief, charming, cozy questioning, and we have actual guns being wielded and actual violence happening. And as you say, this is now the law of this case. I don't know. It's not because we don't have an opinion. We certainly have multiple places where the Supreme Court has said that the shadow docket somehow counts as guidance for future courts. So I do find myself sort of wondering, is Justice Kavanaugh's feelings about the nature of this detention supposed to be guidance going forward for other judges, for ICE officers? I mean, for. This is just flickering shadows. How do you put this into practice?

[B]

Yeah, I mean, the worst part about that is that as powerful as Justice Sotomayor's description of that is, if you watch the video, it's actually worse than what. Than what she describes. And the video is part of the record, and it's also online. Look how you got my hand twisted. That shit.

[A]

I'm American, bro.

[B]

Literally. Based off of skin color.

[A]

My homie was born here just because.

[B]

Of the way he looks. The guy's name is Gavidia G, A V, I D, I A. And if you just put that into Google, you know, you can find the. The encounter. He's speaking in English and, you know, he's clearly saying repeatedly that he's an American.

[A]

Homer here took my phone, dog. He arrested me knowing I'm a American.

[B]

And I proved it to this guy.

[A]

That's crazy, yo.

[B]

Hey, bro, that's not fair at all, bro. It just shows how completely divorced from reality. What Justice Kavanaugh is saying is, you know, the other thing about that encounter, both that one and the other one, involving the owner of the car wash is that it shows how obvious the role of race is in these stops. Because as you said at the very beginning, there's no question that if. If Gavidia looked like Justice Kavanaugh or was dressed in a suit, you know, because he's wearing. He's going to work on a car, so he's wearing, you know, these sort of gray sweatshirts, sort of, you know, and a T shirt. There's no way this would happen if he looked different. And this is one way, I think it's very important for your audience to understand. The law changed with this order because the Ninth Circuit held in the year 2000, 25 years ago, almost halfway between Brignoni Ponce and today, that race could not be used even as a factor in immigration stops, roving stops, for two reasons. You know, they said. They of course, acknowledged Brignoni Ponce, where they said it could be one factor, although only one, amidst a bunch of other more individualized characteristics. Right. That's what Brignoni Ponce had held in 1973. And what the Ninth Circuit said in 2000 was, that was in part based on demographic data that Brignoni Ponce had about the number of Latinos and that region. And then the Ninth Circuit looked at other more recent demographic data. 27 years had passed, and said, well, now this doesn't make any sense anymore because there's so many more Latinos, including many lawfully present Latinos in the region. The other thing the ninth Circuit said was the Supreme Court's law on the use of race has changed. And they were citing cases like Adorand Constructors v. Pena Wigant. And this was before Gruder and then parents involved, the Seattle case. And then, of course, Students for Fair Admissions via Harvard. Right. Which just said, ending discrimination means ending all of it. That's what the Supreme Court just said two years ago when killing off at least most, if not all affirmative action in higher education. They said, you cannot consider race at all. And in 2000, the Ninth Circuit said these two changes, the change in the demographics, the fact that there's more Latinos and many Latinos who are lawfully present, and. And the Supreme Court's evolving doctrine saying that race can never be used or almost never be used, means that now we cannot consider race as a factor at all. And that has been the law in the Western United States, Dalia, from the year 2000 until this past Monday. And that's the reason why, in the way the case was litigated in the lower courts, the government wasn't arguing, oh, of course we can use race, what's the problem? But when they got to the Supreme Court, they said, well, yeah, you know, we're using race. And the fact that Justice Kavanaugh writes this and says it's okay without any recognition of all the intervening law governing the use of race is just startling. It's so startling you can't even consider race as one factor in deciding whether to admit a college student. But you can detain somebody and, you know, violate their Fourth Amendment rights and take away their liberty based on their race, apparently without any problem. I mean, it's just a striking, striking contradiction.

[A]

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[B]

Yes. So I once heard a civil rights lawyer who had done a lot of voting rights litigation and other kinds of immigrants rights litigation say, you know, standing is only for brown people. You know, because if you, if you look at the doctrines, look at the First Amendment doctrine, look at the affirmative action doctrine we were just talking about, it's so striking how sometimes the court can just blow through standing like it's no problem at all. I mean, you don't even, just to take the affirmative action example, you actually don't have to show that you could be admitted to the school in order to have standing in the affirmative action context if you're a white person trying to challenge diversity in college admissions. In fact, the fact that there's a process, a government process that uses race is itself the violation. But here, the fact that the ICE officers are using race as part of the justification for stopping people and doing it all throughout the city where you live and repeatedly in your own workplace is apparently not enough for Justice Kavanaugh. And that, again, is a striking contradiction inconsistency before we even get to Lyons. Right. So. So the reason why Justice Kavanaugh would find no standing is this case Los Angeles v. Lyons, which is about chokeholds. It's about the LAPD's use of chokeholds when they're stopping black motorists in what were. Were, I think, quite clearly recognized as racially discriminatory traffic stops. And they would stop people for driving while black, and then while they could just take the driver's license and ask for proof of registration and insurance, instead they were putting people into chokeholds. And they killed some people that way and nearly killed other people. And so this, you know, one individual filed a lawsuit. This had happened to him, and he argued that it was potentially going to kill him if it happened again. And the Supreme Court said he couldn't establish standing because he could not show that it was likely to happen to him again. And, you know, among the reasons were the fact that you have to actually violate a traffic law to be pulled over. The Supreme Court said, and you know, this is obviously implausible for some. You know, many motorists, black motorists at the time would have told you, like, that's not true. You know, I can be pulled over for nothing. But that was what. That was the Supreme Court's logic. And so a number of post lions cases have said. You've distinguished lions from cases where a person can just do nothing wrong but still be subjected to the unlawful conduct. In addition, if you have a repeated pattern, then obviously it doesn't make any sense that you could have no standing. Right? I mean, if you've been stopped illegally multiple times and the government says, we have a policy that we're going to stop people like you because you work in a car wash or you go to a Home Depot and you fit this other description. You're Latino, you speak Spanish. Well, then obviously you should be able to challenge that. If it's happened to you multiple times and they say they have a policy which you know is going to cause this to happen again, then it feels like that surely should be challengable. And it's outside of Lyons. And Justice Kavanaugh doesn't say anything about either of these. He doesn't say explain why Lyons would apply in a situation where people are not breaking the law when they're getting subjected to this. And he also doesn't explain how it could be true as applied to somebody like the second plaintiff, who I believe was stopped four times. If I remembering the facts right, at his car wash, his car wash is rated repeatedly the same car wash. And obviously there's a policy, right? There's numerous policy statements where they Say we're doing this as a matter of policy, you know, whereas LAPD was not saying they're categorically doing it. So, yeah, there's a lot of ways in which Lyons is obviously distinguishable. It would be totally bizarre if actually you could be subjected to repeated unlawful conduct based on a policy and still not be able to challenge. So, you know, this part of the opinion, somewhere in my mind, I'm thinking, there's no way even these Supreme Court justices could actually believe that Lyons is not distinguishable, you know, on this basis. But, you know, you never know. And, of course, because they don't explain anything, you can't tell. So.

[A]

Yeah. Although, again, it brings me back to. It's hard not to imagine that this is the Supreme Court effectively greenlighting. Right. Racial profiling as part of, you know, the basis for reasonable suspicion. And I guess it. It does bring me back to my question. It's hard to imagine a world in which these roving ice raids are not now substantially more comfortable, saying, we're just using race and language and where you're standing as the basis. I mean, in a weird way, this is the paradox of the shadow docket. The court said nothing of the sort, but we don't know what the law is. And I imagine it looks like, especially because of this discussion of likelihood of success on the marriage merits, that there's a vibe out there that is like, I think we just got, you know, Christmas in September.

[B]

Yeah. Yeah. This is why I believe strongly, actually, that the shadow docket is not law. You know, it's not law. Law is based on reasons, and you have to give reasons. They don't have to be long. You know, how long they are kind of depends on what you're asking for. If it's a, you know, motion for extension of time, maybe, you know, it's almost nothing. But for a decision of this consequence, there have to be five justices who explain why they are doing it. And I think for the reasons you say, it's hard for lawyers to accept this, but we have to accept that 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 that allow the Trump administration to do what it wants in these cases without. Without law, you know, without law. And Kavanaugh's opinion is. Is perhaps written because of all the criticism that came from the shadow docket. And, you know, it. It surfaces all these contradictions then, when they give all these reasons and the reasons are inconsistent with the other things that they have said. It allows people to criticize the court, but because it's only him, and there's no reason to believe that the other five had any of the same rationales, which is a point Justice Sotomayor makes in her dissent. You know, they're not bound to any of it. And so it allows them to. To impose completely inconsistent results from a doctrinal perspective. And that's sort of the paradigmatic definition of lawlessness. Right. It's treating like cases differently from a doctrinal standpoint because you want the outcomes to be different. And I feel like that's really what the shadow docket has become in this era.

[A]

So I guess this is just a completely hard, tactical question for you as a litigator and as somebody who teaches and who's somebody who, in a normal world, when we get law, you know, we may not have liked that affirmative action decision, but at least somehow in theory, there was some shift in the doctrine that we could explain. I think now we have nothing. And what is the next step in terms of, you know, this case is far from over. Right. Where are you going to go back and do it on the merits? The court has now signaled, I think, pretty unequivocally where they're going to come down. But we are in a world. It's funny we had Aziz Huq on the show to talk about this Ernst Frankl idea of, you know, what happens when you have these two operating legal systems, you know, what he's describing as the normative state, the prerogative state, and the prerogative state is ever growing. Right. That the president just gets to, as you say, do what he wants, and that the court is expanding the sphere of people who get swept into that kind of thinking. And I think you started with this, but I'd love to end with it. Plaintiffs in this case are US Citizens. This has nothing to do with immigration. This has to do. And I did want to note this, I heard your good conversation with our friend Christian Farias making this point. This is about work in a deep way. This isn't just about immigration. This is about labor. And this is about how work happens, as you said, in Southern California. But it's also, I think, about this huge growth in the class of people for whom the law, as you and I understand it, just doesn't apply. And that only goes in one direction. Right. That eventually sweeps in everyone. And I think that's the thing you're trying when you're saying the shadow Docket isn't law. There is no law here. There is going to be a bunch of judges trying to understand what the law is and I assume a bunch of lawyers. But what it really, it only works one way, which is to expand the sphere of people who get caught up in the law. Right?

[B]

Yes. I mean, I, I think unfortunately Aziz's frame is quite an apt one for thinking about what's happening at least in the immigration cases, you know, which are the ones that I know best in the last nine months. This move right here extends the prerogative state to people of Hispanic appearance or Latino appearance and who are speaking Spanish, whatever that means. You know, it certainly encompasses me if I'm dressed the wrong way and going to play soccer as I do in parks in Los Angeles, even though I'm not in any way Latino in heritage. So we're talking about more than half the people in the Southern California region now who are subject to this different regime. Like you say, that's not one based really on the normative rules that apply to others. So it's a bad time. And to address your question about what do people do, what do lawyers do, what's the law, what do lower court judges apply? You know, well, you know, the Supreme Court has said that its opinions, now they've suggested their, its opinions, even if on the shadow docket, are to be treated with as, as controlling or not. Not controlling, they say informative. That's what they say, informative in like cases. But this is not an opinion. It's only one justice talking. Presumably if we're doing law, if the others agreed with him, as you, as you had said in your introduction, then they would have signed it. So then presumably this is not the law as to the subjects that are addressed. But then what is? And nobody knows, you know, because the opinion's obviously contrary to the pre existing doctrine in this area in a bunch of different ways. And there's no good answer to that question. You know, the answer to that question is that you have to guess because this is not a law based regime that we're living under in this context now. So it's, I don't have the answers for you except, you know, I want state and local leaders to be more creative in their resistance to this. And I'm one of many, many people working in the immigration sphere who are trying to push politicians in California and in Los Angeles to do more, to push back. Obviously there's limits to what they can do and they've done a lot already. But I think they can do more. But you know, that's just, you know, in some ways grasping at straws because there isn't a simple answer to the question when you have life under a lawless regime, which is what we're living under now.

[A]

I feel wiser and also like deeply, deeply saddened by this conversation. But I really, really want to thank you both for your time and for sort of mapping out for us that which was sort of just a fiery ball of outrage when it came down. I think it really needs to be unpacked and understood because I think it's hard to know where we're going unless we understand where we came from. So thank you for joining us.

[B]

Yeah, thank you very much for having me. I wish I could give a cheerier now note. Not that, but I do think there's a lot of people who are interested in resisting the shift. We're definitely not alone in that. And thank you for the work that you're doing also, because I feel like explaining and understanding what's happening is the first step to figuring out how to stop it. Thank you.

[A]

Dalia Pahilan Arulanantham is a longtime human rights lawyer and law professor at UCLA with where he's the co faculty director of the center for Immigration Law and Policy. Before that, he was a litigator for the ACLU of Southern California for 20 years and a public defender in Texas. He has argued three times before the U.S. supreme Court. That's all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are always reachable by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or you can rate us and review us on Apple Podcasts. On today's Amicus plus bonus episode, Mark Joseph Stern and I are going to be talking about the doctrine of political violence when the Second Amendment Amendment swallows up the first and the judges who are in open revolt against the Supreme Court's inscrutable shadow docket opinions. We're going to be talking about a whole bunch of other things. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and on Spotify. Or you can visit slate.com amicusplus to get access wherever you listen that Amazon. The episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus Senior Producer. Our producer is Patrick Fort Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate podcasts and Band Richmond is our senior director of operations. And we'll be back with another episode of Amicus next week.

[B]

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