In June, the U.S. Department of Homeland Security launched large-scale raids in Los Angeles aimed at detaining thousands of unauthorized immigrants. The internal directives from the Trump administration were clear: The president wanted a minimum of 3,000 arrests of noncitizens per day to show the American electorate he was serious about his campaign's vows of mass deportation.

But in a city where nearly half of the population identifies as Hispanic or Latino, where more than 37% of residents speak Spanish at home and more than half speak a language other than English, how could the agents go about identifying people who were in the country illegally?

The U.S. government had an answer: send armed and masked immigration agents to places where many noncitizens work low-wage jobs — car washes, farms, recycling centers — or where they go about their lives, and question anybody who speaks Spanish, speaks English with an accent, or even simply looks Latino. And if those people can't offer immediate proof of their lawful immigrant status, detain them.

"Just go out there and arrest illegal aliens," White House Deputy Chief of Staff Stephen Miller reportedly told officers.

Those tactics quickly drew legal challenges. A putative class action argued the government was relying on racial profiling, a tactic that has been found to violate the Fourth Amendment's protection against "unreasonable searches and seizures" several times throughout the nation's history.

But on Monday, a majority of U.S. Supreme Court justices effectively endorsed the practice. In a brief, unsigned order, the justices temporarily lifted a July lower court ruling that had stopped the government from relying on physical appearance and other race-related proxy factors to identify suspected unauthorized immigrants.

Perhaps under pressure to provide some reasoning for the court's decision, which came as part of the court's often criticized "shadow docket," Justice Brett Kavanaugh said in a 10-page opinion that race or ethnicity are only two of the factors immigration agents can use to make immigration stops.

In a dissenting opinion, Justice Sonia Sotomayor said the majority was giving immigration agents free rein to use wide generalizations — in particular assumptions on someone's race or ethnicity — to go after people, including those with lawful immigration status and U.S. citizens.

"The government, and now the concurrence, has 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," Justice Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The plaintiffs in the proposed class action are four nonprofit organizations and five Latino people who were detained during immigration enforcement raids across Los Angeles and its surrounding counties — code named "Operation At Large."

Justice Sotomayor noted that, as part of the ongoing litigation, the government did not contest that the agents' stops are based on four factors — apparent race or ethnicity, speaking Spanish or speaking English with an accent, presence in a particular location, and the type of work a person does — either by themselves or in combination.

"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," she wrote. "Rather than stand idly by while our constitutional freedoms are lost, I dissent."

Race OK for Questioning Immigrants, Not for Affirmative Action

In 1944, the Supreme Court heard a constitutional challenge to one of the exclusion orders that led to the internment of people of Japanese ancestry following Japan's attack on Pearl Harbor. In that infamous case — Korematsu v. U.S. — the court devised a test to determine when a government action explicitly using race is constitutional. Under that test, called "strict scrutiny," the government's use of race is permissible only if it is determined to be "narrowly tailored" to achieve a "compelling government interest."

During World War II, the federal government detained thousands of Japanese American people, placed them in concentration camps, and expropriated their land with the stated goal of preventing espionage and sabotage. Deciding Korematsu, the court ruled that the government's actions were constitutional, largely deferring to the military leaders in deciding what means were appropriate in protecting the country during the war.

In a fiery dissent, Justice Frank Murphy wrote that the majority's opinion was a "legalization of racism." In a separate dissent, Justice Robert H. Jackson compared the court's decision to a "loaded weapon" ready for any future authoritarian government to use in justifying racial discrimination in the name of national security.

The Supreme Court has since repudiated that ruling, but it has been willing to give the government deference in the use of controversial tactics that run up against constitutional rights in times of national crisis, real or purported.

With President Trump declaring an "invasion" at the southern border, the concepts of immigration and national security appear interconnected as they've ever been, at least in the eyes of the government.

Tom Clark, a professor of political science at Stanford University, said that the recent stream of unexplained emergency decisions affirming Trump administration executive authority signal an intent by the court to avoid clashing with the president.

"They fear that if they were to push back, the president would simply defy them," he said. "There's a chance that part of what's going on in the court's calculus is that there's going to be a crisis of one kind or the other: Either people's rights are going to be trampled on and the Constitution will be whittled away at, or the Constitution will be blown up because the president will simply ignore the checks and balances altogether."

As soon as the Supreme Court issued its emergency ruling, some legal scholars were quick to point out what they saw as a blatant double standard in the way the court considers race as a factor in determining what government action is permissible and what isn't.

The Supreme Court is allowing federal agencies to expressly use race in furthering their immigration enforcement goals. At the same time, it is prohibiting the use of race as even one of the factors to consider in college admissions.

In June 2023, in Students for Fair Admissions v. Harvard, the court ruled that universities could no longer consider race as part of their holistic admission processes, concluding — in a break with precedent — that the educational benefits a university derives from a diverse student body were not a compelling interest that warranted the use racial classification.

Michael J. Klarman, a professor of legal history at Harvard Law School, called it "flagrant hypocrisy."

"No racial classifications that help Black and brown people, but feel free to use racial classifications that endanger their well-being and physical liberty," he said in an email to Law360. "I have no idea how many American citizens or lawful residents 'look' Hispanic, speak Spanish in public, or speak English with an accent, but it must be tens of millions. The court just licensed racial profiling of them, anywhere in the US! That's from a putatively 'color-blind' court."

Ahilan T. Arulanantham, a professor and co-director of the Center for Immigration Law and Policy at the UCLA School of Law said that Chief Justice John Roberts' majority opinion striking down the use of race in admissions at Harvard and the University of North Carolina is "blatantly inconsistent" with the court's greenlighting of the use of race in stops.

"Eliminating racial discrimination means eliminating all of it," Justice Roberts wrote in the 2023 opinion involving the universities,

Earlier in his tenure as chief justice, in a case known as Parents Involved, dealing with efforts by a Seattle nonprofit to increase the racial makeup in public schools by using race a factor, Justice Roberts notably wrote that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

An even more ardent opponent of affirmative action, Justice Clarence Thomas has long held the view that laws aimed at distributing benefits on the basis of race bore a "moral and constitutional equivalence" with racial laws subjugating minorities like the ones used after Reconstruction and during the Jim Crow era.

Arulanantham said it is difficult to know anything about the rationale of the Supreme Court in allowing race to play a role in immigration enforcement, since it provided no reasoning beyond Justice Kavanaugh's concurrence, which did not address that apparent tension.

But nonetheless, six members of the court — only three of them Trump appointees — voted to allow ICE's practices to resume.

"This is a tactic the Supreme Court is using now," Arulanantham said. "The fact that they give no reasons means that they avoid any obligation to explain how their decisions are consistent with each other."

Clark underscored the contradiction even more bluntly.

"There's sort of a galling hypocrisy here," he said. "The same justices say that your race or ethnicity can't be any kind of factor in a private university's decision whether to admit you, but it can be in the government's decision to deprive you of life and liberty."

Erwin Chemerinsky, the dean of the University of California, Berkeley School of Law, said that in its affirmative action rulings, the Supreme Court has interpreted equal protection as requiring that the government be "colorblind."

"But the Supreme Court's ruling in Noem v. Perdomo effectively allows ICE agents to use race as a key aspect of stopping a person," he said. "In essence the court is saying that race cannot be used to remedy past discrimination and benefit racial minorities, but it can be used to harm them."

Suspicion Based on Generalizations

In the early morning of June 18, Pedro Vasquez Perdomo was waiting at a bus stop in Pasadena, California, when about half a dozen masked agents with weapons jumped out of cars and approached him. When he tried to leave, they grabbed him, handcuffed him and took him to the basement of a U.S. Immigration and Customs Enforcement office in downtown Los Angeles. The agents didn't identify themselves and had no warrants.

Vasquez Perdomo later became the lead plaintiff in the class action. At least two of the other plaintiffs — Jason Gavidia and Jorge Viramontes — are U.S. citizens.

Gavidia was working on his car in a tow yard in Montebello, California, on June 9, when a masked agent ordered him to "stop right there" and asked him three times if he were American. Each time he replied that he was, but when he couldn't immediately recall the hospital where he was born, agents racked a rifle, took his phone, pushed him up against a metal gated fence, put his hands behind his back and twisted his arm. He was released only after producing his ID, which was never returned.

In Whittier, less than 10 miles away, agents repeatedly raided a car wash managed by Viramontes, returning four times in nine days. On one visit, an agent asked if he were a citizen and requested ID. Viramontes replied he was a dual U.S. and Mexican citizen and showed his California driver's license. The agent said it was insufficient, "grabbed [his] arm" and drove him to a "warehouse area" for questioning. Agents held him for 20 minutes, checked his IDs, then returned him to work.

Unlike in typical arrests, where the Fourth Amendment requires police to have "probable cause," immigration stops only require that government agents have "reasonable suspicion" that a person is in the country illegally, a lesser standard.

In his concurrence Monday, Justice Kavanaugh argued that Los Angeles' large undocumented population and the prevalence of Central American immigrants who "do not speak much English" and work certain low-wage jobs form part of the "totality of circumstances" that, in his view, justify government agents in making stops.

In laying out his rationale, Justice Kavanaugh cited the Supreme Court's 1975 decision in U.S. v. Brignoni-Ponce, where the court unanimously held that the Fourth Amendment prohibited U.S. Border Patrol agents from stopping a vehicle and questioning its occupants based solely on their appearance — in that case, appearing to be Latino — though that could be one of the factors considered. He also appeared to play down the immigration enforcement actions as "brief investigative stops."

But in her dissenting opinion, where she noted that ICE arrests often involve physical force and have been likened to kidnappings, Justice Sotomayor said immigration authorities were seizing people based on a set of facts that describe a large category of "presumably innocent people."

She agreed with the lower court's conclusion that the factors identified as playing a role in the stops — apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work — weren't indicative of someone's illegal presence in the country.

"The Fourth Amendment thus prohibits exactly what the government is attempting to do here," Justice Sotomayor wrote. "Countless people in the Los Angeles area have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact they make a living by doing manual labor."

Kevin R. Johnson, a professor of law at University of California, Davis School of Law, where he also teaches Chicano studies, told Law360 that although affirmative action in higher education and using race in immigration present very different contexts, there is still a "tension" as to which type use racial considerations the Supreme Court finds permissible.

"I think it's fair to see it as a double standard," he said.

In the event that the court will hear the case involving the Los Angeles stops, Johnson said it is likely that the Supreme Court will reaffirm the Brignoni-Ponce decision and hold that under the factual circumstances of modern immigration in the U.S., race can be one factor in an immigration stop.

Johnson pointed out that the Brignoni-Ponce framework was adopted a few years later in a case that shaped affirmative action in higher education, Regents of the University of California v. Bakke, where the Supreme Court struck down as unconstitutional a racial quota used to admit students at the UC Davis School of Medicine.

In that seminal decision, Justice Lewis F. Powell Jr. wrote that universities could consider race only as one of several factors in shaping up their student bodies, and he pointed to Harvard as an "illuminating example" of how a race-conscious admissions program could survive constitutional muster.

But it is exactly in tearing apart Harvard's admission system, which allowed race or ethnic background to be considered as a "plus" in an applicant's file, that the Roberts court decided that affirmative action in college admissions "must end."

That a Supreme Court majority may be inclined to allow racial profiling play a role in immigration enforcement rather than in other types of law enforcement is also an indication that they may view noncitizens as wielding less constitutional protections, Johnson said.

"Kavanaugh talks about it as sort of a matter of fact: 'Well, if you're a citizen, then it's not a big deal. If you're undocumented, then you're going to get arrested,'" he said. "But many of the plaintiffs in the lawsuit were U.S. citizens, who felt that they were being targeted because of their appearance, and that they weren't being treated as full members of U.S. society because of their appearance."

César Cuauhtémoc García Hernández, a professor at Ohio State University's Moritz College of Law, called Justice Kavanaugh's overall reasoning "very problematic" because it relies on assumptions tying immigration status to what a person looks like or things like clothes worn, and also ignores that many people are bilingual.

"How is an ICE agent going to know whether someone speaks 'much English' by overhearing their conversations on the street? When I speak Spanish on the street, that doesn't mean I don't speak English," he said.

To García Hernández, the Supreme Court's emergency docket order strikes a deeply personal tone. When the order was published, he was sitting at a coffee shop on campus, speaking in Spanish with a colleague who, like him, is Latino.

It was ironic, he said, that his physical appearance and the language he spoke — proxies for his race— made him susceptible to an ICE stop and arrest, but could not be a factor he could consider in prospective students to admit to his university.

"As a university faculty member, I'm not allowed to think about race when I'm trying to build a diverse student population," García Hernández said. "But an immigration agent can think about my race — can think about the language that I'm choosing to speak — can think about the shirt that I bought in Mexico City and happened to be wearing yesterday when deciding to stop and question me."

--Editing by Adam LoBelia.