The Supreme Court unleashes ICE without reasonable suspicion of a crime | Opinion
The Supreme Court’s recent ruling upholding raids by ICE agents in Los Angeles and other cities, targeting people based on their skin color and accents, is inconsistent with fundamental constitutional principles. It legitimizes race-based policing and understandably will cause enormous fear in cities throughout the nation.
A federal district court in Los Angeles had found that ICE agents were stopping individuals without reasonable suspicion that they were unlawfully in the United States. The district court identified a number of instances of people, citizens and non-citizens, who were stopped based on their apparent ethnicity, the language they spoke, and where they worked.
The federal district court required that ICE agents comply with the Fourth Amendment and only stop individuals where there is reasonable suspicion that they are in the United States unlawfully. The court said that ICE agents could not rely on four factors in stopping an individual: apparent race or ethnicity; speaking Spanish or speaking English with an accent; presence at a particular location (e.g., bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or the type of work one does.
The United States government appealed to the United States Court of Appeals for the Ninth Circuit. In a lengthy opinion, the appellate court upheld the district court’s order.
But the Supreme Court, in a 6-3 ruling, reversed and allowed ICE to resume its racial profiling, while the matter continues to be litigated in the lower courts.
A ruling without explanation
There is much that is deeply disturbing about the Supreme Court’s action. To begin with, the Court wrote no opinion, not a word of explanation. The lower courts wrote long, persuasive opinions in a very short period of time. But the Supreme Court did not feel the need to explain itself. Justice Brett Kavanaugh, who was in the majority, wrote an opinion just for himself, while Justice Sonia Sotomayor wrote for the three dissenters.
Judicial opinions are important in providing explanations to the parties to the litigation and to the public. They provide guidance to lower courts and to the government officials who must implement the decisions. “Because I said so” is never persuasive and especially not when coming from the Supreme Court.
The Court’s ruling is at odds with the Constitution. The Fourth Amendment requires reasonable suspicion before anyone -- citizen or non-citizen, documented or undocumented -- is stopped by law enforcement officers. The Constitution’s guarantee of equal protection prevents people from being stopped based on their race.
No one disputes that this is the law. The federal district court found that ICE was stopping people without reasonable suspicion, with race being a primary factor in its actions. This should be sufficient to justify the district court’s order that ICE must comply with the Constitution.
Kavanaugh misapplies the Fourth Amendment
Justice Kavanaugh, in his opinion, says that because there are a large number of undocumented immigrants in Los Angeles, that justifies stopping individuals based on their apparent ethnicity, the language they speak, and where they work. But the core of the Fourth Amendment is that no one can be stopped by the police without individualized suspicion that he or she has committed a crime.
Justice Kavanaugh says that the “interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law.” This profoundly misunderstands the Fourth Amendment: it protects the right of every person – citizen or non-citizen – to be free from being stopped by the police unless there is individualized reasonable suspicion.
It is sadly ironic that the conservative justices who have insisted that the Constitution requires that the government be color-blind ignored that here and allowed overtly race-based policing. As Justice Sonia Sotomayor said in a powerful 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 in a low wage job.”
I am teaching Criminal Procedure this semester. The day after the Supreme Court’s ruling, I began the class by discussing the case. A woman in the class spoke up and said, “My father is Latino. He is a citizen. He speaks English with a heavy accent. He is retired and likes to work around the home. He often goes to stores like Home Depot. I am petrified every day that he will be apprehended by ICE.” She then burst into tears.
And those who look and sound like him every reason to worry. It should not be that way under our Constitution.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
This story was originally published September 17, 2025 at 5:00 AM with the headline "The Supreme Court unleashes ICE without reasonable suspicion of a crime | Opinion."