The Fourth Amendment in the Shadows
Court’s latest delphic order leaves workers and the district court guessing.
The Supreme Court’s latest venture into the shadow docket—one paragraph dissolving a district court order enjoining a flagrant series of Fourth Amendment violations—shows just how casually this majority is setting aside constitutional rights that impede Trump’s authoritarian agenda.
The case, Noem v. Vasquez Perdomo, grew out of the Administration’s “Operation At Large,” a month-long sweep across Los Angeles and surrounding counties. Federal officials touted it as the most intensive enforcement action in years. The result was nearly 2,800 arrests in a matter of weeks, many from raids at Home Depots, car washes, bus stops, farms, and parks. Agents, often masked and armed, swept up people on the flimsiest of grounds.
The plaintiffs—day laborers and community members—brought forward a mountain of unrebutted evidence that federal agents were repeatedly violating governing law on investigative stops. Judge Maame Ewusi-Mensah Frimpong issued a temporary restraining order (TRO) in July, finding “ample evidence” that agents were making stops based solely on four factors: (1) apparent race or ethnicity; (2) speaking Spanish or accented English; (3) presence at certain locations like day-labor pickup sites, car washes, or bus stops; and (4) the type of work, such as day labor, landscaping, or construction.
In plain English, the government was targeting people for looking Latino, speaking Spanish, and seeking work in places where day laborers often gather. That is precisely what the Fourth Amendment forbids—or so it seemed under current law. The “particularized suspicion” requirement means there must be facts distinguishing the person being stopped from the many innocent people who share those traits.
The government had little to offer in response. After being given a week to produce some justification, it fell back on vague assurances: trust our agents’ “special experience,” and remember immigration is a serious problem.
Judge Frimpong wasn’t persuaded. She held that the government could not collapse lawful and unlawful alike into a single suspect class. The Ninth Circuit mostly agreed, trimming a stray phrase from the order but otherwise leaving the TRO in place, with a preliminary injunction hearing set for late September.
Then the Supreme Court stepped in. With no explanation, it wiped away the TRO. Its entire order: “The application for stay presented to Justice Kagan and by her referred to the Court is granted.” That was enough to suspend the lower court’s bar on unconstitutional arrests and open the door for the government to continue the sweep.
The only nod at reasoning came from Justice Kavanaugh, in a separate statement concurring in the stay. But his opinion was a shrug in legal prose. He noted that immigration is a serious problem. He reminded us that reasonable suspicion is a lower standard than probable cause. And he acknowledged that ethnicity alone cannot justify a stop. All true—and all beside the point.
What he did not do was engage the actual findings of the district court—the sworn testimony that these were the only factors agents were using. Nor did he confront the “especially heavy burden” the government bore in asking the Supreme Court to set aside an order grounded in those factual findings. Instead, he gestured vaguely that perhaps the government’s program could be lawful under some circumstances, offering no guidance to Judge Frimpong or the lower courts left to clean up the mess.
Trial judges are beginning to voice quiet exasperation at this pattern. They take evidence, evaluate credibility, and set constitutional guardrails, only to have the Supreme Court sweep it all aside in a midnight order with no reasoning. As one recent report has put it, lower courts are left holding the bag.
Kavanaugh also leaned on an argument the Administration has been pushing since day one: the plaintiffs lacked standing under Los Angeles v. Lyons (1983). That case rejected a challenge to LAPD chokeholds on the theory that the plaintiff could not prove he was likely to be choked again.
But the analogy collapses on contact with the facts here. Many plaintiffs in Perdomo had already been stopped more than once. Judge Frimpong found a genuine likelihood they would be subjected to the same unlawful treatment again. As Justice Sotomayor stressed in dissent, Lyons involved a speculative future injury; Perdomo involves an ongoing program sweeping up the same people repeatedly. To stretch Lyons to this setting is to place mass constitutional violations beyond the reach of any injunction.
Justice Sotomayor’s dissent did not mince words. She warned that by ignoring the district court’s findings, the majority had effectively collapsed lawful and unlawful alike into a single suspect class: “all Latinos, U.S. citizens or not, who work low-wage jobs.”
Her words cut through the Court’s nonchalance:
“We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
Sotomayor placed the issue in stark human terms. Many of those swept up were lawfully present. That should matter. The essence of particularized suspicion is to separate the innocent from the unlawful.
This isn’t the first time the Court has used its emergency docket effectively to transform immigration law. It used the same path to reinstate the Muslim ban, to free billions in Pentagon funds for the border wall, and to allow sweeping expansions of “expedited removal.” In each instance, the Court acted without full briefing or argument, leaving lower courts to guess at the constitutional boundaries while the government implemented its program in real time.
Is the Court carving out a new immigration exception to the Fourth Amendment? A Trump exception? Or even an exception for entire neighborhoods where immigrants live?
The Court leaves everyone guessing—especially the very people the Fourth Amendment was supposed to protect. What we do know is that when Trump invokes immigration, the Court’s conservative majority often treats process, precedent, and fact-finding as disposable. The shadow docket, once a narrow tool for temporary relief, has become a backdoor for sweeping changes in constitutional rights.
Particularized suspicion is not an abstract safeguard. It is the constitutional anchor that keeps government power tethered to evidence rather than assumption. Without it, the executive can stop whomever it wants, whenever it wants, on the flimsiest of pretexts.
The Framers wrote the Fourth Amendment against the backdrop of the British “writs of assistance”—open-ended search warrants that empowered officers to search anyone, anywhere. Individualized suspicion was the American answer. Judge Frimpong’s TRO reaffirmed that safeguard. The Supreme Court’s shadow-docket order cut the tether.
It’s no answer to say these orders are only “temporary,” just setting the stage while cases proceed. Everyone knows the interim is the outcome. By the time the case returns on the merits, the operation will be over, the arrests made, the damage done. That is why deference to district-court fact-finding matters. Trial courts are the system’s eyes and ears. To ignore their findings is to blindfold the law.
Sotomayor understood that. Kavanaugh brushed it aside. And the majority, in silence, made it disappear.
Talk to you later.
The SCOTUS 6 of 9 should all be disbared. They're proving with every decision that their motivation is purely politically aligned with the t regime. Their law professors must be proud.
Kavanaugh's ignorance of life in the real world is alarming. Much of his "explanation" has no relevance to real events. His claim that legal residents are only slightly inconvenienced is an insult. This idiot must not pay any attention to the news. In reality, those "brief stops" are violent and, in many situations, the ICE bullies ignore whatever documentation the suspect produces. What's even more confusing is how Kavanaugh expects anyone detained to prove their citizenship or lawful immigration status, since no generally accepted and widely available document substantiates that. The absurdity of his explanation is a strong indication that this clown is not qualified to be a judge, much less a Justice.