Shadow Docket and ICE

 Ilya Somin at Reason:

Today, the Supreme Court issued a "shadow docket" ruling staying a district court decision that had enjoined ICE from engaging in racial and ethnic profiling in immigration enforcement in Los Angeles. The decision was apparently joined by the six conservative justices; the three liberals dissented. As is often the case with "emergency"/shadow docket rulings, there is no majority opinion. Thus, we cannot know for sure what the majority justices' reasoning was. We have only a concurring opinion by Justice Brett Kavanaugh. But that opinion has deeply problematic elements. Most importantly, it is fundamentally at odds with the principle that government must be "color-blind" and abjure racial discrimination.

The district court found extensive use of racial profiling by ICE in immigration enforcement in the LA area, and issued an injunction barring it. Justice Kavanaugh, however, contends that the profiling is not so bad, and does not necessarily violate the Fourth Amendment because, while "apparent ethnicity alone cannot furnish reasonable suspicion," it could count as a "relevant factor when considered along with other salient factors."

Last month Erwin Chemerinsky wrote at SCOTUSblog::

The Supreme Court long has had an emergency docket. These are matters where a party comes to the court for an order on an emergency basis without full briefing and oral argument. For example, those facing the death penalty often have gone to the court seeking a last-minute, emergency stay of execution. But as Stephen Vladeck documented in his excellent book, The Shadow Docket, over the past decade there was a notable growth in matters decided by the court on its emergency docket.

Since Professor Vladeck’s book was published in 2023, the emergency docket has taken on even greater significance. In the 2023-24 term, there were 44 matters on the emergency docket. In the 2024-25 term, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket.

In the past two months, the court has issued a number of important rulings on its emergency docket concerning the legality of actions by President Donald Trump. Virtually all have been 6-3 rulings, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting.

...

Significant rulings without the benefit of full briefing, oral argument, and deliberation among the justices. As a lawyer, I want the opportunity to fully brief my case and to argue it to the court. The procedures in every appellate court are based on the assumption that briefing and argument can matter greatly. Yet, the briefs in cases on the emergency docket are nowhere near as developed as those in cases on the merits, and there is no oral argument. Nor do the justices even meet to discuss these cases before issuing rulings on them. If one believes that briefing, arguing, and deliberating matters are essential to a system of law – and I certainly do – we should be deeply troubled by their absence when the court is issuing major rulings without them.