Programming note: I’ll be talking to civics educator extraordinaire
on Substack Live at 1 p.m. ET about the state of media, education, and more. Join us on the Substack app or at the link below!The Trump administration scored yet another win at the Supreme Court on Monday.
In July, U.S. District Judge Maame Ewusi-Mensah Frimpong temporarily blocked federal agents from conducting immigration stops in Los Angeles based solely on these four factors (alone or in combination):
“Apparent race or ethnicity”;
“Speaking Spanish or speaking English with an accent”;
“Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agriculture site, etc.)”;
“The type of work one does.”
The Fourth Amendment protects anyone in the U.S. from “unreasonable searches and seizures,” and Frimpong ruled that the above factors were not enough to form “reasonable suspicion” that someone is here illegally.
Last month, a panel of three appeals court judges kept Frimpong’s order in place. Yesterday, the Supreme Court blocked Frimpong’s ruling, at least while litigation in the case continues, in a 6-3 decision. All three dissenters were Democratic appointees, like the three appeals court judges and Frimpong herself, while the six justices in the majority were appointed by Republicans.
As is typical in cases on the court’s so-called “shadow docket” — which the justices use to say whether temporary rulings can remain in effect while a case is being fully decided — the majority did not explain itself. However, Justice Brett Kavanaugh authored a 10-page concurrence, offering two main reasons for his vote with the Trump administration in the case.
First, Kavanaugh said, the challengers in the case — a group of people who allege they were stopped by immigration agents solely because of their ethnicity, occupation, and/or accent — likely lack standing to sue. Standing is the concept that a lawsuit has to be connected to a specific harm someone has suffered or will suffer if the conduct they’re challenging isn’t stopped. Kavanaugh pointed to the Supreme Court’s 1983 opinion, Los Angeles v. Lyons, which found that subjects of previous law enforcement actions do not have standing to receive a “forward-looking injunction” stopping law enforcement actions in the future.
“Like in Lyons,” Kavanuagh wrote, “plaintiffs have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors—and certainly no good basis for believing that any stop of the plaintiffs is imminent.”
Second, Kavanaugh said that even if the plaintiffs had standing, their Fourth Amendment challenge was likely to fail. He pointed to a 1975 Supreme Court opinion, United States v. Brignoni-Ponce, which said that race alone is not enough for “reasonable suspicion,” but that it can be a “relevant factor” when immigration agents are deciding who to stop.
“Each case must turn on the totality of the particular circumstances,” the court ruled in Brignoni-Ponce. Here, Kavanaugh said, “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 job,” and “that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English” are all relevant factors.
Justice Sonia Sotomayor authored a 20-page dissent, which was joined by the other liberal justices, arguing that those factors “in no way reflect the kind of individualized inquiry the Fourth Amendment demands.” She made the case that the Brignoni-Ponce precedent “clearly supports, rather than undermines” Frimpong’s ruling, pointing out that the core holding in that case was that a law enforcement officer couldn’t stop a vehicle solely because the driver seemed to be of Mexican descent.
Sotomayor also pushed back on the standing point, pointing to the court’s 2023 ruling that Colorado couldn’t compel someone to create a website for a same-sex wedding, which found that the designer (who had not yet been so compelled by Colorado) had standing because of the “credible threat” that Colorado could try to her force her to create such a website in the future based on the state’s past actions.
“We should not 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,” Sotomayor added. “Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
Monday’s ruling in Noem v. Perdomo is the 23rd Trump-related case to come before the full Supreme Court in 2025.1 By my count, Trump has won 15 of them and lost four of them, while four have featured “mixed” rulings that contained both wins and losses for him. (Note that these cases have mostly involved emergency applications to decide the posture of a case while it’s being litigated, so most “wins” or “losses” are only temporary. Not also that when Trump loses in the lower courts, he gets to decide whether or not to mount an emergency appeal with the Supreme Court, so this pool of 23 cases mostly reflects the disputes he chose to bring before the justices.)
The court now has two major cases coming down the pike.
First: Pocket rescissions. The case is State Department v. AIDS Vaccine Advocacy Coalition, and it represents one of the most dramatic separations-of-powers clashes to come out of the second Trump administration.
In essence, Trump is trying to get out of spending almost $5 billion in foreign aid funds by using a tool known as a “pocket rescission,” which allows the president to run out the clock and avoid spending funds before they expire by using a loophole in the rescissions process. A federal judge ruled last week that the gambit is illegal; the Trump administration filed an emergency appeal with the justices on Monday.
If the justices bless the pocket rescissions move, it would mark a huge blow to Congress’ power of the purse, allowing presidents to unilaterally decline to spend appropriated funds as long as they file a rescissions request in the last 45 days of the fiscal year.
Also coming up: Tariffs. President Trump’s sweeping “Liberation Day” tariffs were recently struck down by an appeals court (although they remain in effect for now). Last week, Trump asked the Supreme Court to take up the case.
Notably, this would not be a “shadow docket” case: this would involve full arguments before the justices. Both the Trump administration and those challenging the tariffs have proposed a schedule that would call for oral arguments in the first week of November, setting up a high-stakes clash on one of the president’s signature policies — and another case that could further move power from Capitol Hill to the White House.
The justices are also likely to soon rule on whether Federal Trade Commissioner Rebecca Slaughter, who Trump is attempting to fire, can keep her job while litigation continues. Chief Justice John Roberts temporarily set aside an appeals court ruling reinstating Slaughter on Monday, but the full court is likely to take up the issue soon.
As these cases percolate, tensions are rising in the judicial branch.
Before the court adjourned in June for the summer, we see a lot of sniping between the justices. Now, as the justices hand down emergency rulings before returning full-time in October, we’re seeing those hard feelings extending down throughout the judiciary.
In a recent concurrence, Justices Neil Gorsuch and Brett Kavanaugh accused lower court judges of disobeying the Supreme Court by not adequately treating “shadow docket” rulings as precedent.
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them,” Gorsuch wrote, in an opinion Kavanaugh joined.
The Reagan-appointed judge at the center of that case apologized last week, saying he “simply did not understand” that the shadow docket rulings — which generally contain little explanation — were precedent. “I stand corrected,” the judge said.
Former Justice Stephen Breyer took the unusual step of granting an interview with the New York Times to defend the judge, while another district court judge used a ruling last week to hit back at Gorsuch’s comments, which she wrote were “unhelpful and unnecessary.”
It turns out summer break hasn’t been very relaxing for the justices — and that’s to say nothing of the busy fall they have coming up.
This includes one case in January, from before Trump returned to office, involving his attempt to prevent a sentencing stemming from his New York felony conviction.
As to Kavanaugh's "totality of the circumstances," the phrase is called "the law student's friend," as it is not only a phrase from controlling authority but actually controls nothing,being so stupidly all-encompassing as to be meaningless. It is therefore useful in answering any Fourth Amendment question however any lazy judge or lazy 1L prefers to answer it.
I think there might be a typo in the SCOTUS scorecard, is Gorsch supposed to be 29/23?