On Monday, Sept. 8, the U.S. Supreme Court did the unthinkable: it gave the Trump administration the power to use race as a “relevant factor” in stopping and detaining people in Los Angeles. To be clear, as Supreme Court Justice Brett Kavanaugh likes to say, ethnicity—especially of the “Mexico and Central America” variety—is fair game for roundups, detentions, brutal takedowns, and arrests. But no need to worry, the good justice assures us: ICE is legally bound to target only the “bad guys.” If you are legal, everything is fine. But this pie-in-the-sky assurance couldn’t be farther from the truth.
For years, conservatives on the court have claimed to be “colorblind.” They struck down affirmative action, insisting that race has no place in education or public policy. Yet when it comes to criminalizing our communities, suddenly race matters. This is the contradiction at the heart of the Roberts Court: no race in college admissions, but race is admissible in immigration stops.
The real problem in this Sept. 8 decision is that the Supreme Court justices are now saying the quiet part aloud: Brown skin is a problem to be policed. And that leaves us with a dangerous question—can a country built on such contradictions hold together when its highest court openly sanctions racism against millions of its own people?
We write this from Los Angeles, a city where nearly half the population is Mexican, Chicano or Central American. That means almost every family here has someone—citizen or not—who could now be targeted under this ruling. Families who could be harmed physically, emotionally, and financially. We know what it means to be pulled over because you “look like” someone who does not belong. And now the Roberts Court has made that legal again.
As Chicanos working in law and academia, we know the score. This decision ignores both history and plain facts on the ground. Selective amnesia seems to be the illness of choice. Native-Americans, African-Americans, Asian-Americans, and Mexicans have all felt the sting of second-class status. And our memories are quite intact. Think of Plessy v. Ferguson, every broken treaty and legislative act denying Native Americans citizenship, Japanese internment, Chinese exclusion, and the failed promises of the Treaty of Guadalupe Hidalgo. And this is just the tip of the historic iceberg. The story is always the same: the law used as a weapon to keep communities in their place. And now again, the Supreme Court has done it again.
This decision is galling in its scope and dangerously disconnected from the sheer terror that such a scheme will unleash. Kavanaugh’s concurrence stands as the centerpiece of the ruling. He writes that ICE officers may take into account the fact that many immigrants in Los Angeles gather at bus stops, day-labor corners, and car washes; that they work in landscaping, agriculture, or construction; that they speak Spanish or accented English; and that they come from Mexico or Central America. But, careful to burnish his civil-rights credentials, he adds: “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion…” At first glance, he sounds like a reasonable man. Yet just eight words later, he reveals his true colors: “however, it can be a
‘relevant factor’ when considered along with other salient factors.” The doublespeak is thick; his arrogance unmistakable.