In yet another shadow docket ruling without rationale, the Supreme Court stayed the injunction from the LA District Court against ICE rounding up random Hispanics who are now presumed to be illegal immigrants until they can prove otherwise to the satisfaction of masked agents.

Concurring, Justice Brett Kavanaugh explains his joining the 6-3 majority, noting that ethnicity alone is not enough. But add in other benign factors that typically go hand in hand with ethnicity and its close enough for reasonable suspicion.

Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Cf. Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny number of factors” that contribute to reasonable suspicion of illegal presence). To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

Remember the good old Fourth Amendment protected “right to be left alone”? No more, at least not if you’re Hispanic. Justice Kavanaugh then indulges in the sort of fantasy understanding of what happens on the ground that only a Supreme can believe.

Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.

Trivializing the detention itself as some petty inconvenience, rather than being chased, thrown to the ground, physically beaten, then told the “shut the fuck up” by men in masks, Kav apparently believes that a Hispanic person who speaks with an accent and buys his morning coffee at 7-Eleven will be treated with the courtesy and respect that has become the ICE hallmark. Since American citizens are not required to carry “papers” to sate the curiosity of the Green Shirts, will ICE thereupon leave alone a Hispanic person who says he’s a citizen?

Will being Hispanic mean citizens are required to carry proof of their citizenship or end up in Uganda? Will being Hispanic mean citizens are given the opportunity to get proof of citizenship from their sock drawer, or even a day in court to prove their right to be left alone, before becoming guests of Alligator Alcatraz? On what planet does Justice Kavanaugh believe this is happening?

Justice Sotomayor, joined by Justices Jackson and Kagan, sees the problem more clearly.

The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that “describe[s] a very large category of presumably innocent” people. Reid, 448 U. S., at 441. As the District Court correctly held, the four factors—apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work—are “no more indicative of illegal presence in the country than of legal presence.” App. 105a. The factors also in no way reflect the kind of individualized inquiry the Fourth Amendment demands. See, e.g., Terry, 392 U. S., at 21, n. 18 (“This demand for specificity . . . is the central teaching of this Court’s Fourth Amendment jurisprudence”); United States v. Arvizu, 534 U. S. 266, 277 (2002) (relying on particularized facts about the vehicle and its passengers to justify stop based on reasonable suspicion). Allowing the seizure of any Latino speaking Spanish at a car wash in Los Angeles tramples the constitutional requirement that officers “must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417–418 (1981).

The genesis of the problem is that unlike the usual case, seizures are based neither on any interest in arresting a particular individual, or even arresting an individual observed in the commission of a crime, but on a round-up of random individuals who may or may not be in the country legally. Unspoken, Kavanaugh seems to cut the government slack because the numbers are presumptively huge, making specific suspicion too onerous to expect and inadequate to deal with the problem. How does the government seize millions of unknown people without trampling their rights in the process?

In a curious preliminary analysis of the decision, Orin Kerr raises what he calls the “X problem.”

To my mind, all of this points to the underlying problem with Fourth Amendment injunctions that I wrote about in my 2009 article.  It’s hard to enter orders addressing a large but unknown set of scenarios in which some of the scenarios will be constitutional and some won’t.  You end up either just saying to not violate the Fourth Amendment, or you end up with the impossible task of trying to say in advance which specific facts will violate the Fourth Amendment, or you end up entering an overly broad prophylactic order enjoining a broad class of conduct to get to the cases that are unconstitutional within it.  Given how fact-specific Fourth Amendment law is, it’s just a hard way to rule on Fourth Amendment issues.  So I tend to think reliance on Lyons is correct here, and that this should get in the way of saying much if anything about the Fourth Amendment merits.

His point starts with the recognition that, under normal circumstances, Fourth Amendment cases start with a specific set of facts. But what’s happening here is anything but normal circumstances. To add insult to injury, what’s happening here will almost invariably elude judicial review, as seized Hispanics are denied due process and may never have the chance to argue their unconstitutional seizure. There are no Article III judges on the plane to El Salvador.

But more to the point, the fact that these random round-ups of people for being Hispanic+ will both mistakenly (not that ICE gives a damn) capture American citizens and trample on the rights of Americans to be left alone, even at Home Depot, at the expense of some undocumented immigrants slipping through the net seems to squarely fall within the notion of Blackstone’s Ratio. It doesn’t matter how many X illegals get away if the procedure just allowed by SCOTUS means that the constitutional rights of Americans will be forfeited because it would be too darn hard for the government to find removable aliens without violating the Constitution.