Photo: Kevin Dietsch/Getty Images

More than any other recent ruling in the Supreme Court’s emergency docket, known to critics as the “shadow docket” for the speed and darkness with how decisions are made, the order in Noem v. Vasquez Perdomo has people who don’t normally follow these things up in arms. A friend from Peru messaged me, out of the blue, to try to make sense of it for him. “Please explain how the Supreme Court could come to this conclusion!” he implored.

I couldn’t, for the simple reason that the court’s supermajority didn’t offer an explanation. That is, there was no reasoning to accompany an order that lifted a judge’s injunction that, for the better part of two months, sought to prevent federal agents from makingindiscriminate stops and arrests of workers in the Los Angeles area — a campaign against work itself that has swept up people who are a threat to no one else but Stephen Miller: day laborers at Home Depot, car washers, garment-factory workers, farm workers, you name it. Not even fruteros are spared. (The government hasn’t been complying exactly, but that’s another discussion.)

The judge’s ruling was common sense: Under the Fourth Amendment, which protects everyone against unreasonable searches and seizures, a person’s race or ethnicity, the language they speak, or the kinds of jobs they hold or seek cannot be the basis for immigration sweeps and detention. Yet a silent majority of the Supreme Court blocked that ruling, with no explanation. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, didn’t hold back: “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,” she wrote.

Brett Kavanaugh, who just last week tried to assuage judges that the Supreme Court could be doing a better job explaining its work in the shadows, opted to shed some light on this latest decision. In the process, he laid bare his own ignorance about Los Angeles, immigrant workers, communities where their work is valued, and what the rest of us have been seeing with our own eyes regarding these immigration raids. The tell is near the top of his concurring opinion, which no other justice joined and states as fact something that isn’t: “Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States.”

Anyone who knows even a little bit about Los Angeles, New York City, the District of Columbia, or other “locales” where immigrants breathe, live, work, and have families—many of them married to U.S. citizens, with children born here, or other deep roots—can attest that “illegal immigration,” the way Kavanaugh conceives of it, is a mirage. People with immigrant backgrounds simply exist in these cities and communities, and no one—except immigration authorities—goes around wondering who is or isn’t an immigrant, who does or doesn’t have papers, who crossed the border or flew in and overstayed their tourist visa. That just isn’t a thing. In many parts of California, there are people of Mexican descent whose families predated the Mexican-American War. Merely questioning their right to belong offends their very sense of self.

Kavanaugh appears to deeply care about who belongs and who doesn’t, at one point referencing a trope that anti-immigration proponents like to advance—that there are people who “are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.” A notion that is cut from the same cloth as the so-called good-immigrant-bad-immigrant binary.

But even assuming that people cared about a person’s provenance, or whether they had authorization to be here, or carried identification with them, not only would the inquiry inevitably ensnare U.S. citizens, as has been the case; it would sweep far more than the modest, low-wage work and workers implicated by the Supreme Court’s decision. As Ahilan Arulanantham, an immigration scholar from Los Angeles, told me not too long ago, in Southern California specifically, “there are undocumented lawyers, there are undocumented accountants, there are undocumented doctors, lots of small business owners, some people with advanced degrees.” In this reality, he added, the Trump administration’s onslaught “is felt actually throughout the social and economic fabric of the city.”

Worse still, the way Kavanaugh imagines these immigration sweeps to be are detached from the reality of their violence and duration. Pointing to  the Immigration and Nationality Act and its regulations, which otherwise allow the government to “briefly detain” a person if agents have “a reasonable suspicion, based on specific articulable facts, that the person being questioned … is an alien illegally in the United States,” Kavanaugh thinks this dragnet of racial profiling allows people to experience a short inconvenience before they resume their daily activities. “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,” he writes. “If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal.”

As Sherrilyn Ifill, a civil rights lawyer and the former president of the NAACP Legal Defense Fund observed on Substack, just about everything Kavanaugh wrote in that rundown has no support in the factual record of the case, let alone the public record that we ourselves have had to bear witness to. “Every aspect of this description is belied by the reality that appears on our televisions and online every day.” She added: “But who are you going to believe—Justice Kavanaugh or your lying eyes? Kavanaugh’s description reads as though it were downloaded from the Department of Homeland Security’s website.”

But even if this fantasy world that Kavanaugh imagines were true, there’s the added complication that no law supersedes the Constitution. As Justice Sotomayor points out in dissent, even if such a made-up statute existed, “no Act of Congress can authorize a violation of the Constitution,” and it is up to judges to “decide whether the Fourth Amendment allows” these kinds of unreasonable stops.

All of this leads me to wonder: Has Brett Kavanaugh ever pulled up to a Home Depot to hire a day laborer to work on his backyard? Has he bought fresh-cut mangos from a frutero? What about getting his car vacuumed and washed by an ensemble of workers? Does he leave a tip for the Central American hotel worker who cleans up his rooms? Has he gotten his hair cut by a Dominican barber? And can he imagine himself interacting with any of these workers, who may or may not be undocumented, during an ICE sweep that lands them in an unmarked vehicle, manned by masked agents of the state, subjecting them and their families to untold trauma until their release, which may not happen for days, if at all? Because I’ve done all of those things, and I can—and now I wonder if I might one day be swept up with them, too.

If he can’t do that, then it might have been wiser to keep silent, like his colleagues in the majority did—and wait until the issue returns to the Supreme Court. Because the issue will return—if not in the same California case, in another one from New York, D.C., or another city where the president of the United States has been dreaming of a national police force, unbound by law.

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