Ilya Somin has written an in-depth analysis of Judge Kavanaugh’s opinion in the Supreme Court’s decision to lift the injunction against racial profiling by ICE. I can’t claim anything close to Somin’s expertise, but I want to call attention to an alarming point in Kavanaugh’s statement. Somin writes:

In assessing the desirability of staying the injunction Justice Kavanaugh also argues that illegal migrants have little or not legitimate interest in avoiding immigration detention, while citizens and legal residents are only slightly inconvenienced because “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.” This ignores the reality that ICE has detained and otherwise abused numerous US citizens and legal residents for long periods of time. As the district court ruling and Justice Sotomayor’s dissent describe, there are plenty of examples of this problem in the record of this very case. Moreover, even actual illegal migrants have a constitutional right to be free of racial discrimination. The relevant constitutional provisions aren’t limited to citizens or to legal residents.

I’d go further than this. Just the fact of being stopped by an armed, masked man and asked about your citizenship is hardly a “slight inconvenience.” Even if I’d never heard of Alligator Alcatraz, I’d find the encounter frightening. Looking directly at Kavanaugh’s comments, it only gets worse:

Immigration stops based on reasonable suspicion of illegal presence have been an important component of U. S. immigration enforcement for decades, across several presidential administrations. In this case, however, the District Court enjoined U. S. immigration officers from making investigative stops in the Los Angeles area when the stops are based on the following factors or combination of factors: (i) presence at particular locations such as bus stops, car washes, day laborer pickup sites, agricultural sites, and the like; (ii) the type of work one does; (iii) speaking Spanish or speaking English with an accent; and (iv) apparent race or ethnicity.
 
The Government contends that the injunction will substantially hamper its efforts to enforce the immigration laws in the Los Angeles area. The Government has therefore asked this Court to stay the District Court’s injunction.

In what universe do any of those factors constitute “reasonable suspicion”? Do only suspicious characters wash cars and do farm work? Does getting a visa require speaking accentless English? (Some people say I have an accent, and I’ve lived my whole life in the USA!) Is using a foreign language grounds for questioning? (I get together with people once a week to speak German for practice, and we sometimes use the language with each other in public.) Do you have to have the right skin color to be allowed in the US?

In Kavanaugh’s view, it’s fine for American citizens to be subject to special scrutiny because of how they look, where they work, and how they talk. What ever happened to the Equal Protection clause?

The act of questioning isn’t harmless, when it’s done by someone with the legal power to take you away. Even if nobody is arrested, it makes people afraid, especially the ones most likely to be questioned. When the people doing the questioning wear masks, carry heavy weaponry, and have a history of hauling people away for no valid legal reason, it’s much worse.

While the US was active in World War I, it was dangerous to speak German in public or on the phone, and any signs of German heritage could bring people under suspicion. In World War II, Americans of Japanese ancestry were herded into concentration camps. Today the government doesn’t even have the excuse of a war, other than the one which Trump has declared on Chicago. Hostility to people who seem foreign has cropped up repeatedly in our history, and it’s happening again.

The Supreme Court is supposed to protect us against the worst abuses by the federal government, so we swallow its bad decisions and accept the fiction that whatever it says is “constitutional” is constitutional. It has failed to do this on many occasions, including Schenck and Korematsu. It failed again when it said the president can’t be prosecuted for official acts, and we may see more of this. The ruling in question only applies till the Court rules on the issues, and how it rules then is what’s really important.

The Supreme Court can’t be trusted. Congress won’t do anything. The President is an outright enemy. This doesn’t leave us with much protection from the federal government.