SCOTUS swallows "10%": The disputed stat behind a racial profiling ruling in LA
Kavanaugh regurgitated the Trump DOJ's unsourced stat to unleash ICE's "roving patrols" against California’s Latino population.
Journalism isn’t stenography: Get reporting that checks the citation behind the citation.
In a Supreme Court ruling permitting what a federal judge described as “roving patrols” of racial profiling in California, a telling divide emerged among the justices around a statistic.
Trump’s Justice Department claimed, without attribution, that roughly 10 percent of all people living in the Central District of California are unlawfully present.
Justice Brett Kavanaugh accepted that number unquestioningly.
“Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States,” Kavanaugh wrote in a concurring opinion allowing ICE to continue to engage in what a lower found amounted to unconstitutional racial profiling. “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.”
But Kavanaugh’s figure is suspiciously close to Pew Research Center’s most recent estimate of all unauthorized immigrants living in the state of California: 2.3 million people, a number that also includes other major immigration centers like San Diego, San Francisco, San Jose, and Sacramento.
Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, found the citation to be another sign that the Supreme Court had jumped the gun.
“Justice Kavanaugh's reliance on the government's unsourced statistics further exemplifies why the Court should not have intervened on an emergency basis without the benefit of a full evidentiary trial,” Reichlin-Melnick told All Rise News. “But even if the government's statistics are right, it's cold comfort to the majority of the Latino population which is not undocumented and which now may be stopped simply for living or working in a majority-immigrant community.”
“Without even a citation”
The Trump administration’s statistic came from a legal brief filed by solicitor general John Sauer, who argued Trump’s criminal appeal before the Supreme Court. Without providing the underlying data, Sauer attributed the number to Department of Homeland Security estimates.
Justice Sonia Sotomayor was quick to call out her colleague’s lack of skepticism.
“Without even a citation, the Government asserts that ‘10 percent of the population in the Central District’ is unlawfully present, so it is ‘inevitable and unremarkable’ that immigration officers would target any Latino person, or any person speaking accented English, or any person standing in a particular type of location, or any person working a low wage job in the greater Los Angeles area,” Sotomayor wrote in her dissent.
Regardless of the accuracy of the data, Sotomayor noted that the number isn’t statistically or legally meaningful to the case.
“Never mind that nearly 47 percent of the Central District’s population identifies as Hispanic or Latino,” she added. “Never mind that over 37 percent of the population of Los Angeles County speaks Spanish at home, and over 55 percent speak a language other than English.”
Sotomayor said that her colleague, Justice Elena Kagan, articulated the more important principle five years ago in Kansas v. Glover: “Of course, aggregate statistics … cannot substitute for the individualized suspicion that the Fourth Amendment requires.”
The dispute over the 10 percent statistic may not be anywhere close to central to today’s Supreme Court decision, but it is telling as the Supreme Court faces growing criticism for pausing lower court rulings against the Trump administration without explanation.
“Another grave misuse of our emergency docket”
According to Georgetown University law professor Steven Vladeck, the Supreme Court has handed the Trump administration a win on 20 out of 25 emergency applications on the so-called shadow docket. Trump only lost two of these applications, and other cases were withdrawn, dismissed or pending.
Despite their lopsided Supreme Court success rate, the Trump administration overwhelmingly keeps losing in lower courts before judges appointed by both Republican and Democratic presidents.
On Monday, the Supreme Court handed Trump two more victories fitting this pattern — once again, with little explanation, and amid growing controversy in the legal community over the conservative justices’ use of the so-called shadow docket.
“That decision is yet another grave misuse of our emergency docket,” Sotomayor wrote.
Except for Kavanaugh, none of the Supreme Court’s conservative justices provided any reasoning for giving the Trump administration a green light to racially profile Latinos during immigration stops. Kavanaugh’s opinion was a concurrence, which followed a threadbare majority order.
All three of the court’s liberal justices dissented from the order, which paused a lower court’s ruling barring Trump’s “roving patrols” of immigration police to make stops based on these four factors: “apparent race or ethnicity”; “speaking Spanish or speaking English with an accent”; “presence at a particular location”; and the “type of work one does.”
In essence, Sotomayor noted: “The Government, and now the concurrence, has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”
In another ruling on Monday, Chief Justice John Roberts granted an administrative stay that effectively allowed Trump to fire Federal Trade Commissioner Rebecca Slaughter, a move seen by some legal experts as a sign the court may be willing to overturn the 1935 Humphrey’s Executor precedent protecting that office from presidential interference.
Vladeck, the Supreme Court scholar, reacted to the ruling on social media.
“#SCOTUS all-but overruled a unanimous, 90-year-old precedent through an unexplained ‘administrative’ stay this morning, and that's only the second-most-problematic thing it did before lunchtime,” he wrote.
Read the Supreme Court’s order, concurrence and dissent here.
Who can be surprised that the Supreme Court will swallow any argument the Trump administration advances? And who doesn't now think that the six conservative justices are indifferent to signs of brutality as ICE agents arrest migrants and even US citizens
Due process has devolved into undue prejudice. They aren't even trying to make sense of it--no process at all, no work at all. Just "10%! Round 'em up!"
I wonder when they'll get their 6 Team Fascist sweatshirts. Pretty sure they'll be extra long white hoodies.