“WE’RE THE SUPREME COURT, BITCHES!”

 Remember when I asked where Kavanaugh was getting the “15 million ‘illegal’ immigrants” in LA number? Turns out, from Donald Trump:

The Government estimates that at least 15 million people are in the United States illegally. Many millions illegally entered (or illegally overstayed) just in the last few years.

Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million.

When I block-quote judicial opinions in this newsletter, I usually omit the citations (and do so elsewhere in this post, at least when quoting from the Ninth Circuit’s decision). Here, there were no citations to omit. Kavanaugh just asserts these numbers—without telling us where they come from (later in the opinion, he eventually tells readers—in a footnote—that he’s using the Central District as the stand-in for “the Los Angeles region”).3 The first clause, at least, tells us the “15 million” figure is from the government. But the entire second paragraph is lifted straight from the government’s application. (From page 1 of the government’s filing: “Not only is the Central District the Nation’s most populous district overall; at best estimate, it harbors some 2 million illegal aliens out of its total population of nearly 20 million people, making it by far the largest destination for illegal aliens.”)

Even assuming those untested figures are all correct, it’s worth adding some context that readers wouldn’t know just from reading Kavanaugh’s opinion or the government’s application—but would know from the Ninth Circuit’s decision, which reflects on the broader context at length. Quoting from the August 1 court of appeals decision, the same area includes “9,096,334 people that identify as ‘Hispanic or Latino.’ That means people who identify as ‘Hispanic or Latino’ make up almost half—about 47.3%—of the estimated population of the Central District.” And of course, that is the population directly affected by Operation At Large, not the subset of that population subject to immigration arrest and detention. One would think, in a case in which the central allegation is racial profiling, that the demographics of the entire population allegedly being profiled would be just as relevant. They get nary a mention here.

 I pause to note the emphasized language is in the record before the Court. Kavanaugh is cherry-picking. In a hearing, with briefs, the government’s numbers could have been challenged. But hey, why complicate things with facts? (Here’s where I stop to explain courts write opinions so they can explain what facts in the case they are basing their opinion, and the outcome, on. Distinguishing facts is how you explain a different outcome while applying the same law. It’s a standard that stretches back to the common law courts of England. Except now: “WE’RE THE SUPREME, BITCHES!”)

Now take a deep breath:

Then there’s paragraph 5 of Kavanaugh’s concurrence:

Not surprisingly given those extraordinary numbers, U. S. immigration officers have prioritized immigration enforcement in the Los Angeles area. 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 to 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 initiate the process for removal.

Beyond the absence, again, of any citations, note the words I’ve emphasized—“brief” and “promptly.” Kavanaugh hits on this theme—that the stops are “brief” and that anyone who isn’t lawfully subject to arrest is “promptly” released—over and over again in his 9.5-page concurrence. (The words “brief” and “briefly” appear eight times; “promptly” appears twice.)

Well, that’s not what the plaintiffs allege, or what the district court and Ninth Circuit both assumed. (For more on why the facts really ought to have done more work here, readers might also check out Sherrilyn Ifill’s typically forceful post for her newsletter.) For instance, here’s the Ninth Circuit summarizing the allegations respecting plaintiff Jorge Hernandez Viramontes, a dual-citizen of the U.S. and Mexico:

On June 18, 2025, around 10:30 a.m., agents again arrived in unmarked vehicles and started asking employees their status. Hernandez Viramontes and some of his coworkers asked the agents if they had a warrant. The agents responded only by saying, “Shut the fuck up.” An agent asked Hernandez Viramontes if he was a citizen, and Hernandez Viramontes answered, “Yes.” The agent asked for ID, and Hernandez Viramontes gave him his California driver’s license. The agent asked Hernandez Viramontes where he was born, and he responded, “Mexico.” The agent asked Hernandez Viramontes if he had his passport. Hernandez Viramontes asked if as a dual citizen he was required to carry his passport. The agent told Hernandez Viramontes his driver’s license wasn’t enough, and that because he didn’t have his passport with him, he had to go with the agents. The agent grabbed his arm and escorted him to a silver SUV. Agents took him to a warehouse area nearby. After about 20 minutes, they took him back to the carwash.

Hernandez Viramontes’s stop was not brief; and after being told that he was a citizen and seeing his (current) California driver’s license, the agents still took him away from his place of work for 20 minutes.

And here’s the Ninth Circuit summarizing the allegations respecting plaintiff Jason Brian Gavidia, a U.S. citizen born and raised in East Los Angeles:

While standing on the sidewalk outside the tow yard gate, he saw agents wearing green vests; some were carrying handguns, but at least two had military-style rifles. When Gavidia started to head back inside the tow yard, a masked agent said, “Stop right there.” Gavidia stopped because he is a “law-abiding citizen,” and he “felt [he] could not leave, and that the agent had stopped [him].” While the masked agent approached him, another “unmasked agent ran towards [him]” and questioned him, asking whether he is American. Gavidia told him, “I am an American.” The agent repeated the question, and Gavidia responded the same way, at least two more times. Then the agent asked Gavidia what hospital he was born in. Gavidia “calmly replied that [he] did not know.” The agent repeated the same question two more times, and each time, Gavidia explained that he did not know which hospital he was born in. At that point, “the agents forcefully pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” The agent asked again, “What hospital were you born in?” Gavidia responded again that he did not know and said “East L.A.” He then told the agents he could show them his Real ID. When he showed his Real ID, an agent took it from him. They also took his phone. After about 20 minutes, they returned his phone, but they never returned his Real ID.

Of course, the Ninth Circuit is only recounting the allegations, as reflected in sworn declarations filed in the district court under penalty of perjury. It is possible that the government could (successfully) contest those factual assertions as the case goes forward.4 But the government’s application in the Supreme Court does not meaningfully dispute these allegations, and Justice Kavanaugh’s concurrence doesn’t even acknowledge them—let alone suggest that either the district court or the Ninth Circuit committed clear error by relying upon them. So either Justice Kavanaugh is aware that this is what the lower courts based their conclusions on, and wrote what he wrote (about “brief” stops and people being “promptly” released) anyway, or he isn’t.

Sorry to quote so much of that, but “change the facts, change the outcome” is an even more fundamental principle of American jurisprudence than the Constitution. And Kavanaugh’s opinion is a peek behind the curtain of how the Sinister Six ignore any messy, contested facts that might require full briefing and oral argument to sort out, when they can just cut to the chase and do what they want to do. Which is what Kavanaugh is doing here.

I’m going to make this shorter by pointing out, again, the importance of distinguishing cases on the facts. The argument here turns on whether Lyons applies in this case.

It is, of course, Justice Kavanaugh’s prerogative to disagree with this analysis, just as it would be the full Court’s prerogative to extend Lyons to these different facts. But when the district court and court of appeals both provide lengthy explanations for why the current case is materially different from the relevant precedent, and why these plaintiffs have standing when that plaintiff didn’t, it seems more than a little incumbent upon any justice to explain why those courts were wrong. Instead, Kavanaugh invoked Lyons and otherwise waved his hands.

Change the facts, change the outcome. But don’t explain because, as Kavanaugh has implied elsewhere, the explanation is that all conclusions must serve Trump.*

Next, Justice Kavanaugh turns to the Fourth Amendment analysis, in which he played up the fact that:

there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.[5]

Under this Court’s precedents, not to mention common sense,[6] those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. 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.

As others have pointed out, this passage is … quite remarkable. Leaving aside how close Kavanaugh gets to racial profiling all his own (“common sense”?!?), I’m struck, again, by its casual relationship with the record in the lower courts. Even accepting the government’s claim that there are close to two million undocumented immigrants in the Central District, there are close to ten million individuals who could be subject to the stops at issue (again, a figure that Kavanaugh nowhere acknowledges) based solely upon the four contested criteria—80% of whom are not lawfully subject to immigration arrest and detention. This was a key analytical point in the Ninth Circuit’s decision that would’ve been impossible for a reader to miss—to say nothing of Justice Sotomayor’s dissent.

And contra Justice Kavanaugh, those folks aren’t stopped just “briefly”; they aren’t released “promptly”; and they’re subject to aggressive, verbally abusive, coercive, and even violent law enforcement behavior up until the encounter has concluded. (You’ve likely seen videos of masked, unidentified law enforcement agents breaking the windows of cars and forcibly removing those who have been stopped.) Even if you were of the view that undocumented immigrants aren’t deserving of full Fourth Amendment protections (and that would be quite a doctrinal development unto itself), it stands to reason that a significant percentage (if not a majority) of the folks being stopped are not who the government is looking (and is allowed to look) for.

"A man [sic] hears what he wants to hear, and disregards the rest.” But Supreme Court Justices shouldn’t.

Concluding unscientific postscript, because I can’t say it any better:

I’ve written before about how, when the justices write separately respecting emergency applications, they have a tendency to show us more of their true colors than in the opinions that get handed down after plenary review. Among other things, these opinions are written quickly and under significant time constraints; they’re not vetted by or circulated as carefully among the rest of the justices; they don’t have the benefit of multiple rounds of briefing or oral argument to inform them; and so on. Indeed, there’s an honesty to these opinions that may not be refreshing, but that’s certainly revealing.

And Kavanaugh’s opinion in Perdomo Vasquez is, honestly, one heck of a mess. If this is the kind of analysis that’s driving the justices’ votes in the other Trump-related cases, perhaps it really is understandable why the Court is so often declining to explain itself.

Translated from polite law professor speak: Kavanaugh’s ass is flapping in the breeze, and he brought the rest of the Sinister Six bare assed with him. Things are not soon going to get better.

*Even the judicious Professor Vladeck recognizes this. He points to two cases Kavanaugh cites, for the proposition that the Court doesn’t like nationwide injunctions. Vladeck points out both cases were emergency applications by the Biden Administration which the Court denied, despite eventually siding with the Administration. Kavanaugh cites them in support of the majority decision here.

He cites these cases again at the end of his opinion for the proposition that “this Court a few years ago declined to step outside our constitutionally assigned role to improperly compel greater Executive Branch enforcement of the immigration laws.” Except that the Republican appointees (save Barrett) didn’t decline to do that at the emergency application stage—letting the district court rulings they’d later reverse remain in force for several years.

What’s the difference in circumstances, Professor Vladeck asks rhetorically.