The Supreme Court Says the Constitution Is Colorblind, Unless ICE Is Searching You
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In 2007, Chief Justice John Roberts famously declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” With those words, the court’s conservative majority announced a “colorblind Constitution”—one that rendered race-conscious remedies presumptively unconstitutional. That vision culminated recently in Students for Fair Admissions v. Harvard, in which the court effectively ended affirmative action in higher education by invoking the logic of colorblindness. The court’s conservative majority decided that the 14th Amendment’s equal protection clause, which tolerates no government distinctions on the basis of race, demanded the result.
Against this backdrop, last week’s decision in Noem v. Perdomo strikes a jarring note, with the Supreme Court seemingly singing a very different tune. In a 6–3 ruling on the shadow docket, the same exact justices who decided Students for Fair Admissions just two years ago lifted an injunction that had barred federal immigration officials in Southern California from considering race—alongside language, location, and job type—in justifying detentive stops. Justice Brett Kavanaugh’s concurrence pointed to the 1975 case United States v. Brignoni-Ponce, which held that “Mexican appearance” could be a relevant factor in forming reasonable suspicion for an immigration stop.
But the logic of Brignoni-Ponce, which provides constitutional blessing for racial profiling, is indefensible, particularly under Students for Fair Admissions. Allowing a person’s ancestry or appearance to serve as a proxy for unlawful status is precisely the kind of reductionist and sweeping generalization that is anathema to “equal justice under the law” and the ideals we purport to aspire to. Indeed, the decision conspicuously ignored the equal protection clause as a check on government action. Issued more than half a century ago, in an era still shadowed by the court’s tolerance of segregationist reasoning, Brignoni-Ponce has aged poorly—and caused immeasurable harm.
One of us is a former immigration judge who, after seeing firsthand the dangers of granting law enforcement shortcuts that compromise constitutional protections, held that Immigration and Customs Enforcement’s warrantless arrests in Los Angeles violated fundamental constitutional standards. That ruling was later affirmed by the 9th Circuit in Perez Cruz v. Barr, which made clear that immigration enforcement must be tethered to the Constitution, not expediency. As professors of law, we teach our students that one of the most fundamental principles is that every stop and arrest must meet constitutional requirements. Our students understand that this principle is supposed to apply with equal force to cases like Noem, in which reliance on race as a stand-in for suspicion undermines those same bedrock rights.
Under the roving patrols recently blessed by this Supreme Court, people are treated not as individuals with constitutional rights but rather as suspects defined by race or accent. Stops predicated on profiling carry a presumption of guilt based on certain immutable traits and turn the system on its head, requiring those detained to somehow prove their innocence. Without the right paperwork on hand or the proper answers to satisfy an officer in that moment, (predominantly nonwhite) individuals risk being roughed up, arrested, and effectively disappeared into detention for days before they have any chance of securing release.
Los Angeles is the epicenter of these operations, and the Noem decision will leave scars on our community for years. We watched in disbelief as Angelenos were stopped on their way to work, church, or school because of their perceived ancestry. We wondered how many of our students came from mixed-status families and worried that their loved ones wouldn’t be waiting when they came home from class. But the specter of this decision will cast a shadow far beyond L.A. as the federal government continues its enforcement operations, necessitating the important work of organizations such as Acacia Center for Justice, which educates the community and prepares attorneys to represent those who will be subject to increased threat of detention and who will need habeas petitions in federal court. But no amount of training can sanitize, justify, or excuse the sudden and wholesale abandonment of basic principles of constitutional colorblindness.
Justice Sonia Sotomayor’s dissent in Noem reminds us that even within Brignoni-Ponce, there are still paths to limiting race-based enforcement. But even if Brignoni-Ponce—as binding precedent—compelled the result in Noem, elevation of racial appearance as a law enforcement tool cannot stand.
For decades now, the court’s conservatives have insisted that our Constitution demands colorblindness. As Justice Antonin Scalia once put it, “In the eyes of government, we are just one race here. It is American.” Consequently, in the unequivocal words of Justice Clarence Thomas, “The government may not make distinctions on the basis of race.” Yet when it comes to the rights of immigrants and communities of color targeted for exclusion, the court has just said it is perfectly acceptable to make law enforcement decisions on the basis of race.
The Supreme Court has not hesitated to overrule precedents from the same era as Brignoni-Ponce when they no longer serve the constitutional principles it espouses. The time has come to overrule Brignoni-Ponce and its progeny. Real colorblindness—consistent, principled, and faithful to equal protection—requires rejecting racial profiling in all contexts, including immigration enforcement.
The dignity of millions of people who live and work in our communities depends on it.
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