What's the Supreme Court thinking?
09/09/2025
What’s the Supreme Court thinking?
The court overturned on Monday a federal judge’s order that had prohibited federal agents in Los Angeles from stopping people and questioning them about their immigration status based solely on factors such as their ethnicity, reports The New York Times.
The ruling isn't the final word in the case. The court’s conservative majority will allow the government to continue using aggressive — and unconstitutional, in the eyes of its critics — tactics in immigration sweeps as the litigation slowly proceeds, the Times says.
The majority as a whole didn't issue a ruling explaining its decision, but one of its six members, Justice Brett Kavanaugh, filed a 10-page concurring decision.
He concluded that the plaintiffs probably lacked standing but also portrayed the harm to people who are stopped and questioned despite being lawfully in the United States, including citizens, as modest.
“As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States,” Kavanaugh wrote.
Justice Sonia Sotomayor, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote, “The Fourth Amendment protects every individual’s constitutional right to be ‘free from arbitrary interference by law officers.’” She was quoting a 1975 case that said it was unconstitutional for the Border Patrol to stop a car and question its occupants when the only ground for suspicion was that they appeared to be of Mexican ancestry.
“After today, that may no longer be true for those who happen to look a certain way, speak a certain way and appear to work a certain type of legitimate job that pays very little,” Sotomayor wrote. “Because this is unconscionably irreconcilable with our nation’s constitutional guarantees, I dissent.”
Overturning lower courts’ rulings
In “rare” interviews, a dozen federal judges — appointed by Democratic and Republican presidents, including Trump, and serving around the country — described to Lawrence Hurley of NBC News a pattern they say has recently emerged:
Lower court judges receive contentious cases involving the Trump administration and painstakingly research the law to reach their rulings. When they go against Trump, administration officials and their allies criticize the judges in harsh terms. The government appeals to the Supreme Court.
Then, the Supreme Court, in emergency rulings, swiftly rejects the judges’ decisions with little or no explanation.
Ten of the 12 judges who spoke to NBC News said the Supreme Court should better explain those rulings, saying the terse decisions leave lower court judges with little guidance for how to proceed. But they also have a new and concerning effect, the judges say, validating the Trump administration’s criticisms. A short rebuttal from the Supreme Court, they say, makes it seem they did shoddy work and are biased against Trump.
Judges involved in high-profile cases — and their families —have reported receiving violent threats.
With tensions so high, four of the judges say they believe the Supreme Court and specifically Chief Justice John Roberts, the head of the judiciary, should do more to defend the courts.
The increase in cases in hot nationwide disputes, sparked in part by presidents of both parties depending more on executive orders than passing legislation via Congress, has put greater scrutiny on the court’s reasoning, says NBC News.
The growing reliance on the shadow docket — in which cases are fast-tracked outside the court’s normally monthslong appeals process — has drawn criticism from legal experts about the lack of time and process the Supreme Court spends on what can be incredibly consequential decisions.
Ten of the judges, both Republican and Democratic appointees, agree that the court’s lack of explanation is a problem. Judges must follow Supreme Court precedent, but they can find it difficult to determine what the justices are asking them to do, says NBC News.
One judge suggests that when the justices disagree with a lower court’s legal reasoning, they also should defend it as a good-faith attempt to address complex legal issues.
Four of the judges interviewed by NBC News think Roberts should do more to speak out when Trump allies complain about judicial overreach.
A federal judiciary employee familiar with Roberts’ institutional role representing the judiciary as a whole says there are various reasons he is restrained from speaking out more. If he did, the employee says, the force of what he said would be diluted through repetition, and, with litigation pending in lower courts, he could face accusations of bias or calls for his recusal when he comments on specific cases.
One reason for keeping emergency decisions short, Kavanaugh says, is that the justices have to make decisions but don't necessarily want to pre-judge how cases will ultimately be decided when they come back to the court via the normal appeals process.
“There can be a risk ... of making a snap judgment and putting it in writing,” even though it might not reflect the court’s ultimate conclusion further down the line, he says.
Some judges wonder whether the Supreme Court justices, who have faced harassment and threats, too, realize how vulnerable they are, says NBC News.
The Supreme Court has its own police department to assist with security, but judges rely solely on the Marshals Service, which is under the control of Trump’s Justice Department.
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