Supreme Court allowed controversial immigration stops in L.A. What does the ruling mean for Chicago?

The U.S. Supreme Court last week allowed federal agents to continue stopping people based on race, language and other factors in California amid the same immigration campaign that expanded Tuesday into Chicago — but it did so in an “entirely unexplained” order.

So while the high court seemed to be sending a signal about its position on racial profiling, it’s not clear that the law actually changed with the Sept. 8 order that revolved around “Operation At Large” and U.S. Customs and Border Protection.

A National Immigrant Justice Center official told the Chicago Sun-Times his organization is “working from the position that the law is what it is … unless and until the Supreme Court majority provides better guidance.”

For now, the public only has access to writings from Justice Brett Kavanaugh, a conservative who cited “common sense,” and from Justice Sonia Sotomayor, a liberal who found the majority’s decision “unconscionably irreconcilable with our Nation’s constitutional guarantees.”

“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,” Sotomayor wrote.

The expanded deportation campaign in Chicago was announced Tuesday with a social media post from Border Patrol official Gregory Bovino. U.S. Secretary of Homeland Security Kristi Noem also appeared to have joined agents in Tuesday’s local operation.

The Supreme Court’s order last week officially blocked an earlier ruling from U.S. District Judge Maame Ewusi-Mensah Frimpong in Los Angeles. She wrote in July that federal authorities could “not rely solely” on four factors, “alone or in combination,” to form reasonable suspicion for an investigative stop during “Operation At Large” in California.

The factors included a person’s “apparent race or ethnicity,” whether they spoke Spanish or English with an accent, the type of work they do, or their presence at a location like a car wash, tow yard or “day laborer pick up site.”

But the Supreme Court stayed the order, pending the outcome of an appeal. The majority gave no explanation. Instead, Kavanaugh issued a 10-page concurring opinion, and Sotomayor offered a 21-page dissent.

Sotomayor was joined by liberal Justices Elena Kagan and Ketanji Brown Jackson.

Kavanaugh cited multiple reasons he thought the Trump administration might prevail. Among them were technical questions about whether the people who’d sued the federal government had legal standing to do so.

Kavanaugh went on to write that “apparent ethnicity alone cannot furnish reasonable suspicion.” But he said it can be a “relevant factor,” and he cited other circumstances that included the “extremely high number … of illegal immigrants in the Los Angeles area” who “tend to gather in certain locations to seek daily work” and “do not speak much English.”

“Under this court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States,” Kavanaugh wrote.

He added 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.”

Sotomayor countered that the Trump administration — as well as Kavanaugh — had “all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”

“Allowing the seizure of any Latino speaking Spanish at a car wash in Los Angeles tramples the constitutional requirement that officers ‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity,’” Sotomayor wrote.

Much has been made of Kavanaugh’s writing. But Mark Fleming, associate director of litigation for the National Immigrant Justice Center, noted it amounts to the reasoning of one justice. It’s not clear why other justices decided to block the lower court’s order.

So Fleming, who is based in Chicago, said he doesn’t believe the law has changed.

Fleming also made note of a reference by Kavanaugh to the experiences of U.S. citizens who are stopped and questioned by immigration authorities. Kavanaugh wrote that, if such a person is lawfully in the country, they’ll “be free to go after the brief encounter.”

“The reality on the streets, that I have seen, is that ICE comes with overwhelming force and only figures it out after they have already placed the person under arrest,” Fleming said.

Sergio Perez, executive director of the Center for Human Rights and Constitutional Law Foundation in California, said attorneys in Chicago might benefit from seeing how things played out in the California courts. “They are aware now of some of those landmines,” he said.

But the Supreme Court’s unwritten order also left many to speculate about the justices’ ultimate intentions. Even Sotomayor noted “it is entirely unexplained” — and part of a growing trend with the court.

“This is another reason why, perhaps, we shouldn’t be getting these kinds of monumental decisions in this sort of rapid-fire way,” Fleming told the Sun-Times. “Particularly if the court is not prepared to provide a reasoning on such a fundamental constitutional right in their emergency decision.”