HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Noem v. Vasquez Perdomo, a recent case about federal immigration officers' use of race to detain people suspected of being undocumented. This past summer, the Trump administration directed ICE to ramp up deportations, leading agents in Los Angeles to detain people based on a variety of seemingly unconstitutional factors. Five people who have been detained by ICE sued the government, alleging violations of their civil rights. In yet another shadow docket decision issued without a majority opinion, the Supreme Court decided with the Trump administration.

[ARCHIVE CLIP: Karen Bass: The Supreme Court has now given the green light for law enforcement to profile and detain Angelenos based on their race.]

Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have written off our civil liberties, like Donald Trump writing off a poem to Jeffrey Epstein. I had to force that one, folks, so that we could talk about the little poem that Donald Trump wrote to Jeffrey Epstein.

Michael Liroff: With the horrific doodle.

Peter: I'm here with Michael.

Michael: Hey, everybody.

Peter: And Rhiannon.

Rhiannon Hamam: Hello.

Peter: It's very funny that Donald Trump in his, like, sort of public presence right now is just like an angry dipshit, but secretly, like, he loves show tunes and he writes little poems to his pedophile friends, you know?

Michael: Right.

Rhiannon: Yeah, he writes creepy little gross poems.

Peter: He loves art.

Michael: Yeah, that's true.

Rhiannon: Real Renaissance man. Yeah.

Michael: Unfortunately, the poem is about their shared love of pedophilia, so that is ...

Peter: Yeah.

Michael: That is a problem.

Peter: All good art challenges you. You know what I mean?

Michael: [laughs]

Peter: And that's what he's doing. He's challenging you.

Rhiannon: Oh, God!

Peter: There's only so many jokes I can make about this before we have to start just heavily cutting.

Rhiannon: Right.

Peter: We don't want to get into it too much, but it is our opinion that Donald Trump is a lifelong pedophile.

Michael: Yes.

Rhiannon: Yeah.

Peter: And we think the evidence is really strong.

Michael: Yeah.

Peter: Okay.

Michael: I'd go so far to say it's a fact. It's a fact I believe to be true.

Peter: You could say it's our opinion that it's a fact.

Michael: That's correct. That's right.

Peter: Today's case, Noem v. Vasquez Perdomo. This is a case from just a few days ago about ...

Rhiannon: You're gonna get flamed for saying it like that. Vasquez.

Peter: I felt it bad—I felt it come out bad as I said it, and I thought maybe that wasn't as bad as felt coming out.

Michael: No, it's bad.

Rhiannon: Vasquez.

Peter: Vasquez. I couldn't decide whether I was doing 'kez' or 'quez,' and it just fucked up my whole rhythm. So this case is from just a few days ago about Trump's anti-immigrant crackdown in Los Angeles. As you probably know, Trump deployed federal troops to Southern California early this summer. As you also probably know, because we covered it in a recent premium episode, the federal troops appeared to be detaining people based entirely on their ethnicity and factors like whether they were near a Home Depot, in apparent violation of various constitutional rights. So some folks sued, and a federal court enjoined the federal government from detaining people for discriminatory or arbitrary reasons. But the Supreme Court, in a move that we've now seen many times, intervened to lift that order, allowing the administration to continue discriminating in immigration raids.

Rhiannon: Yeah. Listeners, we did an episode early August, I believe it came out, about the summer in Los Angeles, what that had been like—the militarization of immigration enforcement, the, you know, immigration raids that had taken place in Los Angeles, and the lawsuit that had been filed by the ACLU and others, and what that kind of told us about what had happened in Los Angeles this summer.

Rhiannon: So we talked in that episode about this case getting filed because ICE was doing super racist, you would think, completely illegal and unconstitutional stuff by—admittedly, they said it themselves—stopping people who were Hispanic or Latino, or perceived to be, perceived to be Hispanic or Latino, stopping people who were speaking Spanish, and stopping people who were congregating around these locations that ICE was asserting were suspicious locations where undocumented immigrants hang out a lot at, like, for example, the Home Depot or, like, parking lots where day laborers congregate while they're waiting for jobs or construction sites or car washes.

Rhiannon: The men who filed this lawsuit, some of them are undocumented, some of them are US citizens, had all experienced violent, aggressive detentions. Some of them were jailed in the federal building basement in Los Angeles. And all of them had very similar stories. We—remember this: the ICE agents, federal agents, often without badges, without identifying themselves, coming up, roughing up people, pushing them, hitting them, and then even for US citizens sometimes, detaining these folks, driving them around, taking them to different locations, and taking all of this time, even when people had produced their IDs, proof of their citizenship, taking them around and not releasing them for long periods.

Rhiannon: So you can imagine, obviously, the constitutional violations that are inherent in these ICE activities. This went to the district court for the Central District of California, and that judge, Judge Ewusi-Mensah Frimpong, issued an injunction, issued a stay, said the federal government cannot continue to conduct ICE raids like this in the Los Angeles area while this case is pending. Of course, the Trump administration, the government appeals that injunction, appeals that stay. And this is where we're at at the Supreme Court, only on the issue of this stay.

Peter: Right. So let's talk about the law a little bit. What's at issue here primarily is the Fourth Amendment, which protects against unreasonable searches and seizures, right? Basically saying if the government wants to seize your person or search you —or both—they need to meet a certain threshold. They need to actually have a reason of some sort, right? There are also a bunch of other constitutional provisions that are sort of implicated here, namely the 14th Amendment, equal protection, which is not explicitly referenced in this decision, and yet pervades it, in my view. So this is on the shadow docket, something we've seen before, and there is no written majority opinion. All of the conservatives are in the majority, but there's no majority opinion. Brett Kavanaugh writes a concurrence which no other justice joins, so he's sort of writing on his own behalf.

Michael: Mm-hmm.

Peter: We've said recently that it seems like the conservatives are avoiding providing written opinions whenever they can, presumably because it's just too embarrassing to have to explain yourself when you're just transparently doing whatever Donald Trump needs from you.

Rhiannon: Yeah.

Peter: And maybe this is a good example of what we mean, because Kavanaugh tries to write an opinion defending the ruling, and it's deeply humiliating.

Rhiannon: It's on its terms wild.

Peter: It's a shameful opinion. It is incredibly funny that he even tried.

Rhiannon: The optics of it! The optics! We know all six of you are in the majority. Why would you write a standalone concurrence?

Michael: It's so bad.

Peter: That means that he wrote it presumably thinking someone's gonna join this, and this will be the majority opinion, perhaps, right? And all of the conservatives were like, "No, Brett."

Michael: It's so bad, too. Like, it's—it's embarrassing. Like, this is one of those things where you're like, you know he has no friends on the court, because if he did, one of them would be like, "Well, let's maybe tone this language down."

Rhiannon: Yeah.

Peter: Right. They might—they would work with him to develop an argument that maybe they could join.

Michael: Right, exactly. Instead, they're like, "Let him go make a fucking ass of himself. Whatever."

Rhiannon: Yeah.

Michael: Whatever.

Rhiannon: And let's be clear, like, all the conservatives agree with what Brett Kavanaugh is saying, right? Like, they absolutely agree. They would sign on to it if it weren't so sort of like, shockingly racist, which we'll get into in just a little bit. It's like the other five conservatives on the court at least recognize, like, we don't have to do a legal explanation for this. Like, let's not. Right?

Michael: Let's not put our name on something that's gonna look terrible.

Rhiannon: Yeah, we don't have to. So why would we, right? There is this hilarious part of this, which is like, Brett Kavanaugh is the loser of the court, socially. I just think this is funny. I think this is funny to think about. I think that it's obvious in a lot of ways if you, like, watch the court the way that we do. And this is such a good example. Like, Brett Kavanaugh does not fit in. The other conservatives think he's a loser, and think he's annoying like an annoying kid brother.

Michael: Yeah. We were talking about this before the episode, and I think that the types of guys they are are so different. And I have very clear pictures of them, because I went to a conservative college that heavily features both types of guys.

Rhiannon: Absolutely.

Michael: Dartmouth had the Dartmouth Review, which is a conservative paper that gave us fucking Dinesh D'Souza and Ann Coulter or Laura Ingraham or one of them or both.

Peter: It was Ingraham.

Michael: It was Ingraham. Yeah. These fucking conservative nerds who wear bow ties and think, like, the sickest burn you could ever drop on someone is quoting them and putting the little—the little bracket sick after, like, this motherfucker, God, didn't have good subject-verb agreement. And then Kavanaugh was also very present in the fraternity system at Dartmouth of guys who like to funnel beers and drug women or otherwise sexually harass them. And these were not overlapping social circles, and these were not people who liked one another at all. And maybe when he was younger Kavanaugh was one of the cool guys, but now he's in a social sphere where he's fucking marginalized, where they're like, "What a dumbass. Why do—why are we stuck with this stupid piece of shit?" It's incredible. It's incredible.

Peter: Yeah. And you can see the dynamics the more time he spends on the court. Like, what I told you guys was that now you can see his Dobbs concurrence in almost a different light. Where, you know, he wrote a concurrence in Dobbs that we talked about at the time, where it was sort of just like, "Now abortion is up to the states," and just, like, doing this really weird, like, Law 101 sort of thing.

Michael: [laughs] Yeah.

Rhiannon: "I'm neutral on abortion." Yeah.

Peter: And at the time we're like, why did he write this? Is it, like, for the media or whatever? And that was sort of my theory, like, maybe this is just for the media to pick up on, and law students, you know, who maybe aren't so versed in the law or something, and it provides them with little talking points. But now I feel like my theory is that he was like, "How about this, guys?" And then John Roberts, similar to an older brother giving a younger brother a controller that's not plugged in, was sort of like, "Oh, that would make a really good concurrence, Brett. Why don't you write that? Why don't you go over there and write that?"

Rhiannon: "We'll go ahead and file that as a concurrence. Sure."

Peter: "Why don't you go to your office and write that?"

Michael: [laughs] "That sounds so important. Don't leave it to your clerks. You write that yourself."

Rhiannon: Yeah.

Michael: "You take your time. Go spend some time by yourself with that."

Peter: All right, let's talk about the content here, the substance. One of the first questions here, the first issues, is whether the folks suing have standing to get an injunction. Kavanaugh says that they don't. And he cites an OG 5-4 case from, like, 2020, Los Angeles v. Lyons. The basic premise in Lyons was that a man was brutalized by police—he was put in a dangerous chokehold.

Rhiannon: Mm-hmm.

Peter: He tried to get a court injunction preventing them from using the chokehold that they put him in because it's so dangerous. The court said, "Well, you don't have standing because even though we know LAPD uses this chokehold, you can't prove that they'll use it on you specifically in the future."

Rhiannon: Mm-hmm.

Michael: Right.

Peter: So Kavanaugh makes that same argument. He says, "Look, even if all of the stuff that ICE is doing is illegal, the plaintiffs can't show that it will be done to them again, and therefore no injunction."

Rhiannon: Yes.

Peter: Which I mean, Lyons was a stupid-ass case, but here it makes even less sense because, like ...

Rhiannon: Horrible.

Peter: ... the court is holding that ICE can profile people based on their ethnicity and where they work, basically, right? Which we'll get to in a second. And these people fit that profile. The plaintiffs fit that profile.

Michael: They're gonna continue being visibly Hispanic.

Peter: But Kavanaugh is still saying that they can't prove that it will happen to them again. Like, you're literally okaying a government policy of this happening to them over and over again.

Michael: Yeah. If you're Hispanic presenting and you work at Home Depot, yeah, it's actually very possible, if not plausible or likely, that you will get profiled again because they're going back to fucking Home Depot.

Rhiannon: Yeah. What Brett Kavanaugh says about the standing question is what matters is the reality of the threat of repeated injury. He emphasizes "reality." Like, saying don't just allege, don't just imagine that maybe this will happen to you again in the future, right? But think about the people in this very case. We talked about it in the summer of LA episode, people in this very case were apprehended, taken in a federal vehicle, driven around, dropped back off at their workplace where they had been picked up, and another wave of a raid happened at the same location. This happened to plaintiffs in this case.

Peter: Right.

Rhiannon: You're not, like, imagining that the threat might still exist as to people in Los Angeles or as to you personally. And then think—you know, this is what Peter and Michael, you're both referring to—like, about the scale of it, right? Stops of this kind—meaning racist stops, stops on the basis of impermissible illegal factors like race—they are imminent. If you say race and speaking Spanish are, like, legitimate grounds of a stop, and you just said that this administration is like—Brett Kavanaugh has this, like, whole inference throughout that, like, this administration is stepping up and doing immigration enforcement, not like the last administration. So Brett Kavanaugh is saying this is happening at, like, this huge scale because the problem of illegal immigration, he says, is so huge, right? And he's saying all of these arbitrary, unfair factors can be used. The threat of the stops are absolutely imminent. Like, this is ridiculous to be like, "Oh, well, you can't—you haven't shown enough evidence that actually this is gonna keep happening."

Michael: Yeah.

Peter: Right. I mean, like we said in the Lyons episode, it's stupid that you should have to show this, right? Like, we know that they have this policy. It's before the Supreme Court of the United States. Will you stop dicking around and just address the fucking question? Right?

Michael: Right.

Peter: So now we get to the heart of it: the subject of racial discrimination. ICE and other agencies apparently listening to Stephen Miller's commands ...

Rhiannon: Yeah.

Peter: ... has been targeting people who look ethnically Hispanic, Latino, who have weaker English, and/or who are physically proximate to places that they think illegal immigrants stereotypically hang around, like Home Depot and car washes and mechanics, car mechanics, right? This all seems like a pretty cut and dry constitutional violation, but Kavanaugh says, quote, "Many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Therefore, race and language can be a relevant factor."

Michael: Hmm.

Peter: He says this is, quote, "Common sense."

Michael: Of course. Yeah.

Peter: Yeah. By the way, that's what racists always say after saying something racist, right? Like, "This is common sense."

Michael: Yeah, you just don't walk into the majority Black neighborhoods. It's dangerous. That's common sense. Everybody knows that.

Peter: Common sense.

Michael: Yeah.

Rhiannon: Yeah. He's really pushing the fear mongering about illegal immigration, so-called illegal immigration. He starts this—this absolutely silly concurrence by saying that, like, illegal immigration in this country is happening at extraordinary numbers. He says that in the LA region alone, there are two million illegal immigrants—these are, of course, his words. Out of about 20 million people who live in the Los Angeles region, he says this is 10 percent, 10 percent of people in LA are here undocumented. He says 15 million immigrants are undocumented in the United States. And he's gotta get the jab in about the Biden administration. He says, quote, "Many millions of those illegal immigrants illegally entered or illegally overstayed just in the last few years."

Michael: Whoa!

Rhiannon: Right?

Michael: You might be wondering, dear listener, what does he cite for that two million, ten percent number? And the answer is nothing.

Rhiannon: Nary a footnote.

Michael: [laughs] There's no footnote. There's no citation. There's nothing. He just says it. He just says it.

Peter: "Common sense, baby."

Rhiannon: Yeah. I looked it up and I found—let me cite. I actually have the report open. I looked it up and, like, who knows the geographic region that he's defining as the Los Angeles area, but the USC Equity Research Institute estimated that something like 900,000 people are undocumented in the greater Los Angeles area. This is less than half of what he cited. So yeah, no citation. Can't check him.

Michael: Mm-hmm.

Peter: No. Kavanaugh is making this argument that, like, it's okay to discriminate here because illegal immigrants are in fact disproportionately of Hispanic descent. But the point of discrimination law is that that does not matter.

Michael: No.

Rhiannon: Yes.

Peter: The law protects your individual right to be treated fairly, not to be discriminated against. You don't sacrifice your liberty because people of your demographic group are committing crimes, even if that's true. I always use the example of, like, imagine a fictional, incredibly treacherous race—and it is a conservative pipe dream about an evil race. They are genetically predisposed to crime.

Michael: Let's call them Persians.

Peter: We'll call them Southern Slavs.

Rhiannon: [laughs]

Peter: And this race is, to a man, prone to crime. They all commit crimes with one exception.

Rhiannon: Yeah.

Peter: A genetic defect has rendered one man immune to the criminal predisposition of his demographic.

Rhiannon: Yes.

Peter: Discrimination law should protect that man, in my view.

Rhiannon: That's the point.

Peter: You cannot actually have functional anti-discrimination law if that man is not protected, right? This is the whole point. Like, discrimination does not become legal when the stereotypes are true or something. Or, like, the more true the stereotypes are, the more legal it becomes. And I'm not even saying they are true in this case. That's why I'm using the hypothetical Southern Slav.

Michael: [laughs]

Rhiannon: This is what individual liberty means.

Michael: Right.

Rhiannon: This is a legal system that ensures individual liberty.

Michael: That's what the "individual" in individual liberty means. It means it adheres to you as an individual, regardless of your demographics, that there are certain things the government cannot do to you, right? They cannot search you unreasonably. Like, that is what the Fourth Amendment says. And it doesn't matter where you live. It doesn't matter what you look like. It has to be reasonable. And usually that means it has to require a warrant or probable cause. That's what an individual liberty is. And similarly, that's what due process is about. Due process is ...

Rhiannon: Yes. This is the point of due process. Yes.

Michael: ... is to make sure that every individual is being treated properly and getting their liberties respected.

Rhiannon: Right.

Peter: I'll also add that Kavanaugh is doing a classic racist guy trick, and once you see this trick in one place, you will see it everywhere. He is saying undocumented immigrants, illegal immigrants, are disproportionately Hispanic.

Michael: Mm-hmm.

Peter: Okay? But are Hispanic people disproportionately illegal immigrants? That is the actual question you should be asking. And I'm not saying that the answer to that question matters. I'm saying that he's asking the easier question to avoid having to ask the harder one, which is: Is the median person that fits this description actually likely to be an undocumented immigrant?

Michael: Right. What's the risk of false positives of your racial profiling? In this county, something like over 40, approaching 50 percent of residents are Hispanic.

Rhiannon: Right.

Michael: So even if his bullshit 10 percent statistic was correct—which it's not ...

Peter: Right.

Michael: ... you're still gonna have a huge number of false positives, because guess what? People fucking go to Home Depot, and people work at Home Depot who live here legally. They go to 7-Eleven, right? And half of them are fucking Hispanic. Four out of ten of them are Hispanic.

Rhiannon: Yeah, this goes back to the imminence as well. Like, the potential harm is not just to undocumented people or people, like, committing immigration crimes. The plaintiffs here are citizens. They were detained under these unfair standards that ICE is using to detain people. And it continues to be imminent if Brett Kavanaugh and the conservatives are saying this is fine to millions of people in Los Angeles and, of course, across the country.

Peter: Now this case is about the Fourth Amendment primarily, but like I mentioned, the equal protection clause, which directly prohibits discrimination, sort of is just in your mind throughout it, right? I'm gonna read a little quote from a Supreme Court case where they said the, quote, "core purpose of the equal protection clause is doing away with all governmentally-imposed discrimination based on race."

Michael: Hmm.

Peter: Do you know what that is from?

Rhiannon: What case, Peter? What's that from?

Peter: That's from Students for Fair Admissions v. Harvard, the fucking affirmative action case.

Rhiannon: Yes. The case that did away with affirmative action. Yes.

Peter: Right. When we're talking about affirmative action, can schools consider race in admissions? No. The core purpose of the equal protection clause is doing away with all governmentally-imposed discrimination based on race.

Michael: Yeah.

Peter: What happened?

Michael: I have it on good authority from John Roberts himself that the way to stop discriminating on race is to stop discriminating on race.

Peter: Mmm. Powerful.

Michael: He wrote that in—what was that? That was Parents Involved.

Peter: That was. Parents Involved. Yeah, Parents Involved. 2007.

Rhiannon: Yeah. I think the affirmative action case, and just broadly what the conservative vision is of what the Constitution protects against in terms of racism, this very formal—any classification that's based on race is unconstitutional. And this is what they weaponize, of course, in order to do things like dismantling affirmative action or dismantling any sort of policy or practice that is, you know, trying to rectify past racial injustice or to try to make things more racially fair. Of course, you know, their big argument on affirmative action, the conservatives, is absolutist, formalist argument about racial classifications, that they, you know, must be done away with in whatever form is really important in the affirmative action context because what universities argued for years is we're not using race in affirmative action. We're not using it as, like, some deciding factor. It's not even gonna tip the scales. It's not gonna make the difference, because it's used as a factor of a factor, right? Like it's not even a priority or a main consideration when we're looking at admissions. And the Supreme Court says, no, absolutely not. Any fucking classification is unconstitutional, you freaks.

Peter: Race cannot weigh anything in your analysis.

Rhiannon: Right. Here, Brett Kavanaugh and the conservatives are completely ignoring that there is explicit racial classification being used by federal agents to stop and detain people. And the way Brett Kavanaugh brushes this off is by saying, "Well, all a federal officer, all an officer has to have to do an investigatory stop to detain somebody is reasonable suspicion. And reasonable suspicion is specific, articulable facts that a law enforcement agent can articulate to describe why they had some amount of suspicion of criminal activity. And reasonable suspicion is assessed, is evaluated in totality of the circumstances." Brett Kavanaugh is saying this to hand wave that race is a factor being used here.

Peter: Right. He's saying, "Well, it can be one factor of several."

Rhiannon: It can be a factor. It can be a factor here.

Peter: Which, by the way, his citation for that is, like, a case from 1975. It's, like, a throwaway line from some garbage ass case from 1975.

Michael: Of course.

Rhiannon: Yeah.

Peter: The real holding of that case is that race cannot be the sole factor. And here he's like, "Well, it could be one of these holistic factors." Right?

Rhiannon: Right.

Peter: But these plaintiffs don't actually have the other factors.

Rhiannon: Yeah.

Peter: Like, several of these plaintiffs are American born, which means, like, they're not speaking, like, broken English or something like that. They're just Hispanic and, like, maybe working in a job that these people think is, like, suspicious or whatever. So, like, I guess two factors but, like, it's really close to one factor.

Michael: Some of the plaintiffs were just getting coffee before work, and I guess they were getting coffee somewhere near where day laborers maybe wait for work or something.

Peter: Right.

Rhiannon: Yeah.

Peter: So, like, it's hard to imagine that when the Supreme Court in 1975 said you can't use race as like your action as, like, the basis for your suspicion, what they actually meant was, like, "Well, if it's race plus being 20 feet away from a day laborer."

Rhiannon: [laughs] Right. Right, exactly. I do want to unpack the reasonable suspicion standard a little bit and the way that Brett Kavanaugh talks about it, because he's trying to like, bludgeon you with logic. Like you said, Peter, he's saying, like, "Well, of course race and ethnicity, that's just logical that that is relevant to a suspicion that somebody might be undocumented." Right? But reasonable suspicion as a standard is either meaningful, it either means something, or it's meaningless. And, like, it's like, what is the purpose of reasonable suspicion? It forces law enforcement to have to articulate facts, to have to have some amount of facts that give rise to suspicion. And what is the use of the word "reasonable" here? Using somebody's race is legally unreasonable.

Rhiannon: This is, like, imbued. This pervades, like you said, Peter, the entire opinion. It pervades the entire Constitution. It actually pervades the entire history of the United States. Using somebody's race as determinative of criminality is not legally reasonable. That is why, you know, we have multiple amendments in the Constitution, right? And so he thinks he's being clever by trying to make it seem, like, so obvious. Like, of course, you could use race and reasonable suspicion, but it's in complete, complete denial of, like, this really, really foundational constitutional concept that, like—that we have and that, like, is imbued throughout the amendments, whether it's the Fourth Amendment or anywhere else, right?

Michael: Mm-hmm.

Rhiannon: Imagine gun ownership, individual gun ownership. And somebody said, "Well, we can use race as one factor to, like, let somebody buy a gun.

Michael: School shootings are predominantly done by white teenage males, so we should probably just not let white men own guns.

Rhiannon: Yes.

Peter: I mean, you know, domestic violence by men—I mean, violent crime in general is something that adheres basically to young men specifically more than any other group or demographic, right? And you just can't imagine a world where the court would ever accept that.

Rhiannon: Absolutely.

Peter: They would be appalled. I mean, they won't even let you get, like, a slight disadvantage going into college.

Michael: There was an—I think it was Hobbes on If Books Could Kill, on your other podcast, Peter, one of the early episodes, said that there was, like, a thought experiment that was, like, you know, like, the most effective crime policy you could do would just be to imprison boys when they turned, like, 14 and let them out when they turned, like, 28 or whatever. [laughs] And that would be really effective for controlling crime. It's still not a good policy or one you should do, right? And it's one that the Constitution protects against.

Rhiannon: You would think. Right.

Michael: In any event, I do want to—I want to say explicitly, though, that, like, they're not being hypocrites, they just believe in a racial caste system, right? They're just confederates, right? I think on the podcast before, I've called them neo-confederates, but I think at this point, we can just call them—they're confederates. They're fucking—these motherfuckers love Robert E. Lee. These motherfuckers want a segregated society.

Rhiannon: Yeah.

Michael: They want a racial underclass with fewer rights.

Rhiannon: Yeah.

Michael: And so it's not hypocritical at all.

Peter: All right, let's move on in this argument. The next portion, Kavanaugh is weighing the burden imposed on people who are detained and interrogated by federal agents, right?

Rhiannon: This is wild. This is wild!

Michael: This is one that made me so fucking angry. I mean, this whole opinion made me angry, but this is the one.

Peter: This is part of the Fourth Amendment analysis, right? It's like, well, how much of an imposition is this on the citizen, right? On the person. What Kavanaugh says is, quote, "The interests of individuals who are here illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law."

Michael: Oh my God!

Peter: That is not an especially weighty legal interest.

Rhiannon: This is wrong, you guys.

Michael: Everything about this is wrong.

Rhiannon: If you are a law student listening ...

Peter: This makes no sense. If being suspected of violating the law forfeits your Fourth Amendment rights, then there are no Fourth Amendment rights.

Rhiannon: Right.

Peter: Constitutional rights apply whether or not you violated the law. That is a huge part of the point. It's like a really big part of the point.

Michael: Right.

Peter: It's not like if they're a criminal, then they don't have any interest in, like, the Fourth Amendment. No, it protects everybody. There's no carve out for fucking—for people who commit crimes. It doesn't matter if you're a murderer, you still have Fourth Amendment rights. You don't get to be like, "Well, the police didn't need a warrant because this guy was covering up a murder."

Rhiannon: [laughs] Yeah.

Peter: You don't get to say that. That's not how it fucking works.

Michael: Right.

Peter: He pairs this with what's from a recent Amy Coney Barrett holding where she said—when you're doing this injunction analysis, you're trying to figure out which party is irreparably harmed. And she said, "When you halt a government policy, the government is always irreparably harmed." Right?

Michael: This was in the birthright citizenship case.

Peter: Kavanaugh cites that, and you have this sort of, like, duality, like the yin and yang of, like, first of all, the government is always harmed when you stop them from doing what they want. Second of all, someone who's committing a crime—allegedly—is never harmed.

Rhiannon: Doesn't have constitutional rights.

Peter: They don't have any constitutional rights.

Rhiannon: Right. Right. There's no harm.

Peter: It doesn't make any fucking sense. It's incoherent. It's antithetical to the entire concept of rights.

Rhiannon: Yes.

Michael: Yeah, it is. The move he's pulling here is so fucking dishonest, because the analysis is not what are the interests of people committing crimes, right? He even says it like two sentences earlier. He says, you have to balance the harms to the "regulated and negatively affected parties," which is not just people here without documentation. It's the plaintiffs in this case who are American fucking citizens. It's lawful permanent residents.

Peter: Well, he addresses them separately, although that doesn't actually make sense, because the agents don't know in advance whether someone's undocumented. But whatever. So he addresses them separately. He says, "As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are US citizens or otherwise legally in the United States.

Michael: Wrong.

Peter: Now let me regale you with the story from this actual case.

Rhiannon: Yes.

Michael: Yes.

Peter: One of the plaintiffs in this case is a US citizen born in LA. ICE shows up at his workplace, asks if he's a citizen. He says yes multiple times. They asked what hospital he was born in.

Michael: Yeah.

Peter: And when he could not recall, they racked a rifle, slammed him against a fence, and twisted his arm behind his back. They finally get his ID, at which point they let him go, but they confiscate the ID.

Michael: Right. They took his ID and never gave it back.

Peter: Another citizen in this lawsuit who runs a car wash showed ICE agents his ID. They still arrested him and brought him to a warehouse for questioning. These are examples from the case.

Rhiannon: Yeah.

Peter: Which Kavanaugh ignores completely in favor of just making up a scenario where everything goes really smoothly?

Michael: Right.

Rhiannon: And making up a standard that doesn't exist in the law. The question about whether reasonable suspicion and an investigatory stop and detaining a person, whether or not it's brief, has nothing to do actually with whether or not it's constitutional, right? It doesn't matter how brief the detention is. An investigative stop is a detention of the person. That is a seizure under the Fourth Amendment. It must be reasonable. This is what the Constitution says. This is longstanding Supreme Court jurisprudence.

Michael: Right.

Rhiannon: In the state of Texas, there are pretty strong rules, right? The state of Texas! There are pretty strong rules agreed upon by courts across the state that a police officer cannot just say, "Hey, stop. I'm making you stop," without reasonable suspicion. It doesn't matter how long it is.

Michael: Right.

Rhiannon: It's lying on multiple levels by Brett Kavanaugh.

Michael: There is a reason why even brief investigatory stops asking for identification are features of authoritarian regimes and strongly disfavored, if not outright prohibited in American law, right? This didn't come out of fucking nowhere, right? Like, Kavanaugh's literally saying, "What's the big deal? If you're a citizen, you just give them your ID."

Peter: "What's the big deal? If you're innocent, we should be able to search your house." It's the same shit.

Michael: Right. It's fucking crazy. The "papers, please" regime is fine. That's what he's arguing. He's arguing that if they had the manpower for it, they could, because the imposition on everyday citizens is so minor according to him, they could just post someone at every fucking corner in every city in this country and demand identification from anyone they felt like at any point for any reason. That's the logical extension of his reasoning here. It's fucking insane.

Rhiannon: Yeah.

Michael: It's totally nuts, and it's totally wrong.

Rhiannon: I think this goes back to, like, the racist logic thing that you were talking about, Michael. Like, he's bludgeoning us with, like, a sort of—like a sort of, like, sassy logic of, like, "Yeah, of course." And just kind of like hand waving. Like, "Just accept it. Just accept what I'm saying" kind of thing. But this is, like, mask off of the racist logic of the United States, I think, in maybe like the most clear way we've seen at the Supreme Court in a while. Like, almost as explicit it can get, right? It's only reasonable—he's talking about, like, reasonable suspicion. You know, it's reasonable for these agents to take these things into account when deciding in their fucking roving patrols who to stop and who to—who to arrest and who to detain. It's only reasonable, like, so obvious in the way that he wants it to be, that you would use race like this if you live in a white supremacist exclusionary society.

Michael: Right.

Rhiannon: In which, like, your membership in the in group, and in which the decisions about who is to be kept safe and who's in the out group and who's suspicious and who's perceived as dangerous and who's a threat to the in group, that that all makes sense when race actually is a primary factor in making those decisions, right? And that is what Brett Kavanaugh is most logical about here and fucking stupid enough to write.

Michael: Yeah.

Peter: This is what he can't avoid: Under his logic, a completely law-abiding Hispanic citizen, or someone who's perhaps just swarthier than average, who works a certain type of job, has lesser constitutional rights than a white person in the same situation, right?

Rhiannon: Yes.

Peter: That is the inescapable conclusion. The direct output of his logic. It doesn't matter what else he says, that is a fact of this decision.

Michael: Yeah, he talks a lot about, you know, the majority of undocumented migrants—which he calls "illegals," of course, "illegal alien" throughout the opinion—are Hispanic. But what happens when Trump decides to say that it's the policy that they're cracking down on—I don't know, the Haitian migrants who were eating the dogs and the cats. They're gonna be predominantly Black. What happens then? You might not know this but there are Black people in Latin America. There are a lot of them. What about that? Like, are we not gonna go after them? You know, Trump has already floated the idea of Asian undocumented immigrants becoming a target for deportation, which is also a massive population, the Asian population in a lot of states, especially California. There's absolutely no reason why this has to stop with Latino-presenting people. Like, none.

Rhiannon: Oh, certainly not. Yeah.

Michael: There's no, like, practical reason, there's no logical reason, and there's certainly no indication from the Supreme Court that they have any interest in stopping this being expanded to other racial and ethnic categories. So, like, it is what it is. It's the silent—except for this fucking one dumbass writing his little 10-page shit opinion. The silent blessing of a racial caste system. It's what it is.

Peter: The last thing we should mention is that at one point Kavanaugh talks about the alleged use of excessive force by police, which is technically a separate legal issue. And what he says is, quote, "To the extent excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court."

Michael: Mmm.

Peter: This is cute because the conservatives on the court have actually made it incredibly hard to sue federal officials for constitutional violations. And the last time it came to the court in Hernandez v. Mesa, Kavanaugh voted against holding federal officials accountable.

Rhiannon: Right.

Michael: Yeah.

Rhiannon: They said that family cannot sue.

Peter: Right.

Michael: And that was the CBP guy who just shot a kid?

Peter: Yeah. A Border Patrol guy just shot a child across the border.

Michael: Right.

Rhiannon: Yep.

Peter: Killed him.

Michael: Yeah.

Peter: And I guess Kavanaugh's being honest because he says remedies should be available in federal court.

Michael: [laughs]

Peter: He does not say that they are, right? He's like, "Remedies should be available?"

Rhiannon: Yeah.

Michael: They're not.

Rhiannon: I agree. Remedies at law. Interesting. [laughs]

Peter: Couldn't agree more.

Michael: So there is a dissent authored by Sonia Sotomayor, which Kagan and Jackson joined. I didn't love this dissent, if I'm gonna be honest. It pulls punches. For example, at one point, she says "The government claims without citation that there are two million undocumented migrants in, you know, LA County."

Rhiannon: Yeah.

Michael: She doesn't mention that fucking Kavanaugh wrote that in his opinion right then. Like, if you're gonna talk about how that's a bullshit statistic or imply it's a bullshit statisti,c and knock someone for just stating it outright without citation, how do you not mention that fucking Kavanaugh did, like, right there.

Rhiannon: Yeah. That's why you're saying it.

Michael: Yeah.

Rhiannon: Right.

Michael: It's also very, like, clinical, you know? Which I think oftentimes can be a positive adjective, like you're doing something very clinically. You're, like, sort of taking them apart clinically. And I think that's sharp what she's doing, but I don't think this is an issue that calls for, like, a clinical, step-by-step deconstruction of the government's arguments and Kavanaugh's reasoning. Like, that's not what this case calls for, in my opinion, which made me just wonder who her audience was for this.

Michael: And I've been thinking about it a lot, and obviously we're recording this just 24 hours after this came out, so I haven't had, like, a ton of time to really chew on it, but my best and most charitable guess at this is that her audience is district court judges. And her thinking is there's no majority opinion here for them to follow, and so I'm gonna lay out the reasons why they shouldn't follow this. And they can continue to put sand in the gears of things, and they can use a lot of the logic I offer here. And I don't know. I don't know how I feel about that. I don't want to say that is without value, but it feels like if that's the approach we're going for then, like, maybe KBJ or Kagan should have written a separate descent, throw in some fucking fire, you know?

Peter: Right.

Rhiannon: This is—this is kind of what I was thinking about the dissent. I'm a little surprised. And I don't know, we read a lot of these, y'all. Like, we read a lot of these, and so I think we pick up on subtle differences. A lot of my friends are sharing a quote from Sotomayor's dissent, which is really powerful. She says in this dissent, "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. Rather than stand idly by while our constitutional freedoms are lost, I dissent." Like, this is—you know, it's sort of like, obviously, like, what the dissent is about. I suppose this is a good, like, succinct articulation of that, for sure. I am shocked. Look, when this dropped yesterday, the three of us, in the chat with just the three of us, in the chat with other people, Brett Kavanaugh's opinion was shocking.

Michael: Yeah.

Rhiannon: This is shocking. It's disgusting on its face. It is in contravention of so much of the, like, foundational understandings of the Constitution and United States law, right? It's surprising to me that each of the three liberals did not dissent separately and join each other's dissents.

Peter: Maybe it's because it's not a majority, it's just Brett. And they're like ...

Rhiannon: I get that.

Peter: That's the only thing I can think of.

Rhiannon: I get that. But what's to come? What is this showing what's about to happen?

Peter: I mean, it's like we said, it's not the majority in a technical sense but, like, it sort of is, right?

Michael: Right.

Rhiannon: Yeah. Brett Kavanaugh says, like, a huge factor in making this decision is whether or not the government will prevail on this argument, should this case be heard on the merits. He's saying, this is how we would rule.

Peter: I mean, that's the analysis that you have to do to get to the conclusion that they got.

Rhiannon: Right.

Peter: Yeah. I mean, I agree. I just don't really get why. I would like to see something out of Jackson. Kagan would have been like, "I agree with the racism part, but the precedent ..."

Michael: It would be a fucking just painful ...

Rhiannon: It'd be a yawn fest. It'd be a yawn fest. But I think it is wild enough, it's shocking enough, it's disgusting enough that it warrants each of the three of them doing their thing, whatever that thing is. But, like, do you have something to say about this? This is—it's—it's wild. Yeah.

Michael: I think what's important to realize here is what the conservatives are doing right now—and I don't just mean in this opinion. They essentially want the district courts and courts of appeals to be their bagmen and to do their dirty work for them. They want to bless, essentially, Dred Scott or Plessy v. Ferguson, but they don't want to write those opinions. They don't want their name on it.

Rhiannon: Totally.

Michael: So they are issuing these fucking shadow docket decisions where the only conclusion you can draw is that we now live in a racially segregated society with different rights for different groups.

Rhiannon: Right.

Michael: But they're not gonna say that. And then they expect—because this is how the Supreme Court often talks to district courts—and I've discussed this, I think we've all discussed this on the podcast before—is, like, through informal signaling on the shadow docket about what they take, what they overturn, what they grant, et cetera. They expect the courts to get the picture and just start doing it. Just start being like, "Okay, we live in this world now."

Michael: And so far the district courts have said, "No, fuck you. Make me." Which is awesome. Good for them for the most part. But it's fucking cowardly. And if that's what's happening, then somebody should be saying that. Somebody should be writing an opinion, being like, "The Supreme Court is allowing a Plessy-like regime go into effect, and asking lower courts to do it for them because they're too much of a fucking pussy—" I said it since Peter's not allowed "—to do it themselves. They're trying to make the district courts do it."

Michael: Somebody should put that in a fucking opinion. I believe that, because that's what's happening. Even if the district court judges are Sotomayor's audience, somebody should be talking to regular people. Somebody should be talking to congressmen. Somebody should be talking to the fucking media and explaining what's going on, because what's going on is horrific and shocking. Like, I read this opinion yesterday and was furious, like, pacing around my house angrily for, like, an hour and was like, "I need to do something to fucking calm down. I'm, like, losing my shit." Like ...

Rhiannon: No, line by line this is wild.

Michael: Yeah. So it's not—like, as part of a larger effort, sure, this would be fine. As the only thing the liberals put out on this? I'm sorry. Come on.

Rhiannon: Yeah.

Michael: Come on.

Peter: Yeah.

Rhiannon: That's how I felt. Before we wrap, I want to make a point about, like, where a decision like this or, you know, Brett Kavanaugh's opinion here, like, where does this come from? Like, we, all of us, society is obviously reacting to, you know, extremism in government right now. This, like, far-right ascendancy, authoritarianism, this kind of thing. But we make the point on this podcast a lot that, like, this is built brick by brick.

Rhiannon: You can draw lines that culminate in this decision. You can draw lines all the way back. I mean, we've talked—like, all the way back throughout United States history, but more specifically, you can draw the lines back to 2010, when the "papers, please" law went into effect in Arizona, which is where law enforcement in Arizona conducting regular stops were mandated by law with the "papers, please" law to conduct immigration status checks, ask for proof of citizenship or legal residency. And that law was challenged, and it went up to the Supreme Court. And in Arizona v. the United States, the Supreme Court said that requiring immigration status checks during law enforcement stops is fine.

Rhiannon: So outrage is absolutely, like, warranted, right? Like, more than warranted. Confrontation with this kind of regime, with the imposition of this kind of world, with the imposition of these kinds of hierarchies, absolutely warranted. But I think it's just so important to, like, contextualize historically and even specifically on these kinds of laws where this comes from. And again, always, always, always noting that it's a project, right? Brett Kavanaugh and this stupid concurrence don't come out of nothing. This is a project built brick by brick by brick over decades.

Michael: Right.

Peter: He could have never thought of this on his own.

Rhiannon: Right!

Michael: No, I do think that's really important to mention, Rhi, because, you know, we've talked about on the podcast, and it's true that these guys are marinating in right wing bullshit and it's pickling their brains. And we've talked a lot on the podcast, and it's true that a six-three court is worse than a five-four court. And Brett Kavanaugh is to the right of Anthony Kennedy, and Amy Coney Barrett is far to the right of Ruth Bader Ginsburg. But even back in 2010, before people were cooking their brains on Nazi Twitter, before people were cooking their brains on OANN and Newsmax, before all that shit, when it was a five-four court with Scalia and Kennedy, yeah, they were like, "Yeah, you can—you can just demand ID from anyone who you suspect might be a migrant." Right?

Rhiannon: And Kennedy wrote that majority opinion.

Michael: Yeah. Libertarian king Anthony Kennedy wrote that opinion. So I think what this illustrates is one of our core theses of this podcast, which is that this is and has always been a reaction to the New Deal, and a reaction to the Civil Rights Movement and a reaction to the sexual revolution. And this is very much in line with the reaction to the Civil Rights Movement. These are people who want a segregated society, at least, if not something worse.

Peter: We've been going for long enough that I don't have a ton more to say, but it's worth reemphasizing that what's happening here over the course of this year at the court is the creation of a secondary body of law for immigrants.

Michael: Mm-hmm.

Peter: No equal protection, no due process. We've seen that here. We've seen it in, like, the CECOTE situation. No Fourth Amendment. And as always under fascism, it's not that there are no constitutional protections. You get constitutional protections if you're a white guy applying to college.

Michael: Right.

Peter: It's not that there are no constitutional protections. It's that there are categories of people who are carved out from those protections. There are categories of people who the Constitution falls upon more loosely.

Peter: All right, folks. Next week we're gonna do a term preview—the term to come. Just today they granted cert on tariffs.

Rhiannon: Let's fucking go, girl!

Peter: So excited. So excited. Whatever they do, I hope it's good for my stocks, you know?

Michael: [laughs]

Peter: And I imagine all of our listeners feel the same way.

Rhiannon: Do y'all think I still don't have stocks?

Michael: No, you don't have stocks.

Peter: You really should know by now, hun. Back in episode two, Rhiannon asked us if she had stocks. That was probably recorded in January, 2020. We said, "No. No, sweetie."

Michael: No.

Rhiannon: I don't know if I have stocks still. [laughs]

Peter: You're doing the—"Okay, yay."

Rhiannon: No. No. You're pretty. You're pretty. [laughs]

Peter: Follow us on Twitter @FiveFourPod. Subscribe to our Patreon at Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We will see you next week.

Michael: Bye everybody.

Rhiannon: Toodles.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.