I woke up this morning to Jennifer Rubin’s article on federal judges’ complaints about ‘shadow docket’ Supreme Court decisions that overturn carefully researched lower court decisions without explanation. The conservative justices just rule in Donald Trump’s favor without offering any clue as to what, if anything, the lower courts got wrong, and without offering any meaningful guidance for future decisions.[1]
As if on cue, the Supreme Court has just released another such decision lifting the limits the immigration raids in Los Angeles that a lower court had imposed. It’s yet another ‘shadow docket’ decision, opposed by the Court’s liberal justices, and without any explanation beyond that offered by Brett Kavanaugh in a concurring opinion: He wrote, in the Washington Post’s paraphrase, “that illegal immigration is a major issue in the Los Angeles area. He opined that race can be considered along with other factors in forming reasonable suspicion to stop someone for an immigration check, such as where people are gathering and what jobs they are working.”[2]
First, I cannot let pass that Kavanaugh’s addition of locations and manners of employment only compounds the vile bigotry of racial profiling. A point that seems to have been lost is that courts are supposed to be fair. Fairness seems not to have been a factor here.
Second, an emergency cannot exist merely because Trump declares it to exist or because Supreme Court justices acquiesce or concur in an unreasoned decision. Having lived in California for over fifty years and having studied the politics of migration[3] while residing in that state, I know that a significant majority of the state’s population, let alone that in the Los Angeles area, does not regard migration to be an emergency; migrants pick the crops of the state’s agricultural industry, a significant source of the country’s food, and as in other places, they work in restaurants and in the construction industry. Our society relies on migrants in so many ways but the Trump administration zealously stigmatizes them and seeks to expel them. If the Court is going to base its decision on such an ‘emergency,’ that emergency ought to be incontrovertible, which is far from the case.
Third, obviously, the federal judges have a point. Issuing decisions like this does not look anything like even the benighted version of what passes for ‘justice’ in our erstwhile constitutional oligarchy. Rather than relying on judicial reasoning, this decision smacks of an authoritarian fiat. The Court needs to explain itself.
[1] Jennifer Rubin, “Even Federal Court Judges Know the MAGA Justices are Out of Control,” Contrarian, September 8, 2025, https://contrarian.substack.com/p/even-federal-court-judges-know-the
[2] Justin Jouvenal, “Supreme Court lifts limits on immigration raids in the Los Angeles area,” Washington Post, September 8, 2025, https://www.washingtonpost.com/politics/2025/09/08/supreme-court-lifts-limits-immigration-raids-los-angeles-area/
[3] David Benfell, “Conservative Views on Undocumented Migration” (doctoral dissertation, Saybrook, 2016). ProQuest (1765416126).