Breaking News: John Roberts Takes a Piss on the 4th Amendment

Pictured Above: A Courtroom sketch artist’s rendition of John Roberts pissing on the Fourth Amendment.

I’ve been fuming about SCOTUS’s latest order staying a lower Court order that forbade ICE from engaging in racial profiling. Not surprisingly, 5/6ths of the Justices who agreed with this result¹ were too cowardly to sign the order or even to articulate their reasoning. This is in line with their recent trend issuing unsigned, unreasoned orders, then whining when lower Court judges have trouble applying the completely unreasoned “rule” that has been been announced.

A quick rundown of what the Constitutional law of the land has been for the last several decades. The Fourth Amendment states, in relevant part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” Modern Fourth Amendment jurisprudence thus requires “probable cause”–or articulable facts that make it probable that an individual has committed a crime–for a warrantless arrest; and “reasonable suspicion”–or articulable facts that make it reasonable to believe that an individual has committed a crime–for a brief detention, such as a pat down. ²

In this case, a District Court³ entered a Temporary Restraining Order (TRO) forbidding ICE from “making a detentive stop”–which as you’ll recall requires “reasonable suspicion” of criminal activity–based on the following four factors:

(1) the person’s apparent race or ethnicity;

(2) that the person speaks Spanish or speaks English with an accent;

(3) the person’s presence at a particular location— whether that be a random location, such as a sidewalk or front yard, or a location selected “because past experiences have demonstrated that illegal aliens utilize or seek work at these locations”; and

(4) the type of work the person does or appears to do, even if that is a job that, in the officers’ experience, is more often performed by illegal immigrants than are other jobs.

Makes sense, right? None of those factors could create any legally “reasonable suspicion” that a person was committing a crime. The District Court’s TRO was affirmed (or agreed with) by the Ninth Circuit⁴ on appeal. And again, it makes sense, because someone’s race, the language they speak, their mere presence on a sidewalk, or being a manual laborer couldn’t possibly create a legally cognizable “reasonable suspicion” of criminal behavior.

Well that may have been true in the years prior to September 8, 2025, but that’s not the case anymore. The Supreme Court stayed the TRO, which means those factors are now on the table to allow ICE to detain people based on their race, the language they speak, where they are located, or the type of work they do–despite the fact that NONE OF THOSE FUCKING THINGS CAN POSSIBLY SUFFICE TO “REASONABLY SUSPECT” SOMEONE OF A FUCKING CRIME!!!!⁵

Kavanaugh, albeit a dishonest hack , at least had the common decency to attempt to articulate his views in a Concurring Opinion published on the Supreme Court website. I suppose it’s telling that none of the other five Justices with whom he agreed in their result did not sign onto it, because it is unmistakably the work of a dishonest hack. To quote Boof:

So “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion.” But by Boof’s logic, being brown-ish and speaking another language, or being on the sidewalk, or mowing your fucking lawn, CAN furnish reasonable suspicion.

Sotomayor’s dissent puts the lie to Kavanaugh’s dishonest hackery:

I couldn’t put it better myself, so I’ll leave it at that.

Not only is Kavanaugh dishonest on the law, he’s also dishonest on the facts, pretending that ICE is engaging in brief, harmless stops:

Sotomayor again dispenses with this nonsense by citing the FACTS found by the District Court below,⁶ which are, in a word, harrowing:

So these are United States citizens being threatened, harassed, detained in warehouses, having guns pointed at them, and having their identification papers confiscated by masked, unidentified, heavily armed thugs.

And now the Supreme Court has essentially given these masked, unidentified, heavily armed thugs carte blanche to stop and detain people at gunpoint based on the color of their skin. BUT OH WAIT: I’m misstating Kavanaugh’s actual reasoning. They can abuse and terrorize brown-ish people, but ONLY if those brown people are, say, walking along a sidewalk, or look like they work construction, or are mowing the lawn.

I could keep ranting, but I’m just too depressed.

1. Unsurprisingly, it’s the Sinister Six: John Roberts, Clarence Thomas, Sam Alito, Amy Coney-Barrett, Brett Kavanaugh, and Neil Gorsuch; with Sotomayor, Jackson, and Kagan dissenting. ↩︎
2. As with everything in law, these general rules are subject to a metric shit ton (that’s a legal term) of exceptions, provisos, loopholes, etc., but I’m writing a blog post, not a legal treatise, so just bear with me here. ↩︎
3. The District Court is the lowest level of Federal Court. Part of their function is to engage in fact-finding through hearings, trials, evidentiary proffers, and the like. The higher Courts–Courts of Appeal and the Supreme Court–weigh in on legal issues that the District Courts may have gotten wrong, but generally defer to District Courts on matters of fact. This will be relevant later, I promise. ↩︎
4. The Ninth Circuit is a United States Court of Appeal, which resolves matters of law when a party or parties claim that the District Court made an error in the law (or more infrequently, when they were clearly erroneous on the facts). ↩︎
5. Sorry for shouting, this is clearly upsetting me. ↩︎
6. See note 2 above – District Courts are tasked with finding the facts, which Kavanaugh simply ignores, because it runs contrary to his racist agenda. ↩︎