Justice Sotomayor’s Dissent in ICE Case Suggests Growing Indignation — and Impotence — Over Supreme Court’s Conservative Course

Justice Sonia Sotomayor’s blistering dissent in the Supreme Court’s latest immigration case puts in sharp relief the increasingly bitter posture of the liberal justices locked into the minority, seemingly in perpetuity.The ruling this week lifted an injunction from a federal district court judge that limited the ability of Immigration and Customs Enforcement agents at Los Angeles to make spot arrests as part of a wide crackdown. The Trump administration had empowered ICE agents to consult a mixture of their own impressions about appearance, location, and workplace in deciding whether to arrest. The lower court had insisted that only a “reasonable suspicion” was enough to justify an arrest. The Nine, though, disagreed by a six-to-three vote. Because the case shot up to the high court on its emergency, or “shadow,” docket, there were no oral arguments, and no written majority opinions. The justices’ overturning of the lower court is a temporary order, not a final ruling on the merits.The district court judge, Maame Frimpong, was appointed to the federal bench by President Biden. The majority of the Supreme Court, though, reckoned that she stayed ICE’s hands too severely. The high court’s liberal wing — Justices Elena Kagan, Ketanji Brown Jackon, and Sotomayor — seized the opportunity to lay out their dissent in scorching prose. The pen belonged to Justice Sotomayor, with the other two liberals joining her in dissent.Justice Sotomayor, the court’s senior liberal justice who was nominated by President Obama in 2009, writes, “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.”The justice’s invocation of the loss of “our constitutional freedoms” echoes the jeremiads from Justice Jackson this term. She describes this moment as a “perilous” one for the Constitution. In the case that curtailed the use of nationwide injunctions, she wrote, “It is not difficult to predict how this all ends … executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.” Justice Sotomayor, whose parents are from Puerto Rico and who has spoken of the judicial perspective of a “wise Latina,” adds that her conservative colleagues “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.”The dissent also denounced the court’s process. Justice Sotomayor writes that “this court’s appetite, to circumvent the ordinary appellate process and weigh in on important issues has grown exponentially. Its interest in explaining itself, unfortunately, has not.” Justice Brett Kavanaugh, in a concurrence, noted that “many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English.”The case will ultimately turn on constitutional bedrock — the Fourth Amendment. It ordains, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has ruled that that guarantee “imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.”Justice Sotomayor’s position is that the court’s majority runs roughshod over the Fourth Amendment, which, in her telling, “prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that ‘describes a very large category of presumably innocent’ people.” The Journal’s editorial page, though, reasons that agents still “need evidence of non-citizenship to make an arrest,” as opposed to a mere stop.The condemnation of the court’s liberals was joined by California’s elected Democrats. The mayor of Los Angeles, Karen Bass, declared in a statement, “I want the entire nation to hear me when I say this isn’t just an attack on the people of Los Angeles, this is an attack on every person in every city in this country.”

Justice Sotomayor’s Dissent in ICE Case Suggests Growing Indignation — and Impotence — Over Supreme Court’s Conservative Course

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