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Receipts show the current Court's right wing extremist rulings are not aberrations, but manifestations of SCOTUS history—and that must change
This week the Supreme Court issued a ghastly ruling to hasten fascism in America. On a shadow docket 6-3 opinion written by credibly accused rapist Brett Kavanaugh, the Supreme Court ruled that Trump's ICE fascists can use ethnicity as a ‘relevant factor’ when furnishing reasonable suspicion to detain people, specifically citing Latino ethnicity. Notably, the Supreme Court made no mention of the ~600,000 mostly white Canadian and European undocumented immigrants in the United States.
This same Supreme Court previously stopped Affirmative Action to “ban targeting based on race.” Yet they continued to allow legacy admissions, allow white Afrikaaner "refugees," allow over-policing of Black communities, & allow bans on Afghan refugees and South Korean workers. Apparently it is okay to target based on race to give white people an undue advantage, or to discriminate against Black and brown people, but not to ensure Black and brown people have an equal opportunity.
Meanwhile, I keep hearing comments alleging that this Supreme Court has now dishonored a once honorable Court. The truth is actually far worse than that. This Supreme Court’s extremism is not an aberration, but a manifestation, of Supreme Court extremism throughout U.S. history. The receipts are devastating and ignored by corporate media, but it is critical we shed this collective amnesia if we hope to move forward. Should Democrats ever retake the House, Senate, and White House, expanding the Supreme Court to uphold justice is not just wise, but critical to protect our Republic from total collapse. Let’s Address This.
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A History of Injustice
In reality, SCOTUS has (almost) never reflected the will of the majority of American people. In fact, it has most often blocked what Americans want and voted for. And while no one article can do justice to a history that began on March 4, 1789 when the Supreme Court was first established, this snapshot provides a clear picture of what we’re up against, and why this is unsustainable.
19th Century Injustice
Let’s start in 1857 with Dred Scott v. Sanford. SCOTUS ruled 7-2 that Black people are subhuman and therefore cannot be citizens. This ruling prevented a peaceful or legal solution to ending slavery, and historians cite this case as one of the final straws that likely enabled the eventual Civil War. At least 600,000 soldiers died in the Civil War. The subsequent Jim Crow laws and the harm they cause reverberate to this day.
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In 1883 the Court advanced this racist policy with The Civil Rights Cases. Most Americans don’t realize that some 90 years before the 1964 Civil Rights Act, Congress passed the Civil Rights Act of 1875 to mandate equal justice for Black Americans. Instead, SCOTUS ruled 8–1 that the Civil Rights Act of 1875 was unconstitutional, and that the 13th and 14th Amendments did not actually provide equal protection to Black people. Hence Jim Crow laws were not only valid, but now had full mandate to strengthen and advance as Black Codes. This barbarity would stay on the books until 1964, devastating generations of Black Americans.
In 1896 the Court further enforced Black Codes under Plessy v. Ferguson. SCOTUS ruled 7-1 that mandatory racial segregation was not in violation of the 14th Amendment. This further advanced Black codes, Jim Crow, economic, housing, and educational disenfranchisement. This SCOTUS ruling further strengthened the KKK and white supremacy. The KKK grew so powerful as a result of rulings like Plessy, that by 1920 they were 4 million member strong, and at least 1 in every 11 white Americans was a card carrying member.
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SideBar
But Qasim! Some might argue. That was a long time ago in the 19th century! Surely you can’t be serious that the 20th and 21st century was that bad?
In response I’d say, I am serious, and don’t call me Shirley. And keep reading to see.
20th Century Injustice
In 1918 the Court embraced child abuse via child labor in Hammer v. Dagenhart. SCOTUS ruled 5-4 that Congress could not ban child labor in intrastate commerce, calling it a "states rights" issue. Sound familiar? As we see labor cases come before SCOTUS today, and see GOP led states pass laws enabling child labor, remember this history of enabling child labor and child abuse. For example, right now in 2025 Florida is pushing to loosen child labor laws to allow 14-year-old children to enter the work force and even work overnight shifts. Again, what we are seeing today is not new, but a revival of yesteryear extremism.
In 1924 the court targeted Asian Americans directly in Thind v. United States. SCOTUS ruled unanimously, 9-0, that though a Sikh American named Bhagat Thind was Aryan per the U.S. then phrenological and eugenicist pseudoscience definition of white, he did not meet a "common sense" definition of white—and therefore could not be a citizen. This ruling helped uphold a 1924 total ban on all Asian immigration. That ban would remain on the books for another 41 years until the 1965 Immigration and Nationality Act ended these racist race based quotas. It’s worth noting that for much of American history, while Black, Latino, and Asian immigration was heavily restricted or outright banned, white European immigration was largely encouraged via open borders.
Side Note: When you hear white MAGAs scream “immigrants should come here legally,” know that their own ancestors arrived here illegally per their own made up definition of legality and illegality. But that’s an article for another time.
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The 1927 Supreme Court continued its eugenics streak in Buck v. Bell. SCOTUS ruled 8-1 to uphold a Virginia eugenics law targeting Black people. States nationwide would then adopt this ruling and craft their own state laws. As a result, more than 60,000 Black women, men, and children as young as 10 were forcibly sterilized—which we now recognize as a textbook definition of genocide. Perhaps just as horrifying is that as of 2025 Buck v. Bell remains valid Supreme Court precedent as no subsequent SCOTUS ruling has ever overturned it. Given how the Trump regime is using the 1798 Alien Enemies Act to disappear brown migrants, I do not put it past him to use the 1927 Buck v. Bell ruling to revive genocide of Black Americans.
In 1944, while American soldiers fought fascism abroad, the Supreme Court ruled in favor of fascism in Korematsu v. United States. SCOTUS ruled 6-3 to uphold President FDR's Executive Order 9066 that forcibly interned 120,000 Japanese Americans. Though America was at war with Japan, Germany, and Italy—only Japanese Americans suffered mass arrest and deprivation of property. In broad daylight, our government spoke of the evils of Hitler’s concentration camps, while placing American citizens in concentration camps of our own—reminding everyone once more that Hitler got his ideas for concentration camps from the British Boer camps and from American Jim Crow. (The must read book on this topic is Hitler’s American Model by Professor James Q. Whitman).
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In 1986 the Supreme Court ruled in Bowers v. Hardwick to condemn queer Americans. SCOTUS ruled 5-4 to uphold a Georgia statute criminalizing even private LGBTQ relationships. Though finally overruled in Lawrence v Texas in 2005, anti-sodomy laws still exist in several states, anti-LGBTQ violence and rhetoric remains at record highs, and it is getting worse.
Sidebar
Far from improving significantly over the 19th century, in the 20th century the Supreme Court openly supported white supremacy, abusive child labor practices, anti-Asian immigration bans, eugenics, genocide, fascism, and anti-LGBTQ bigotry. And while we celebrate the Civil Rights acts passed in the 20th century, we’ve seen a massive regression of those very laws in the 21st century. So, if you thought the 21st century Court was better than past eras, read on, because sadly, it is not.
21st Century Injustice
In 2000 the Supreme Court ruled on Bush v. Gore, denying American people their vote. SCOTUS ruled 7-2 in favor of GW Bush, handing him the presidency. This was despite Al Gore winning the popular vote by more than 500K votes. Bush then bankrupted our surplus, cut billionaire taxes, left America trillions in debt, and waged two failed wars that cost more than $6 trillion and killed tens of thousands of American soldiers and hundreds of thousands of Afghan and Iraqi civilians. I bring up Bush’s atrocious record to document the consequences of the Supreme Court installing someone the American people voted against.
In 2008 the Supreme Court voted to devastated our climate and prop up corporate corruption in Exxon Shipping Co. v. Baker. SCOTUS ruled 5-3 to protect Exxon from punitive damages in which a drunk operator spilled 11 million gallons of oil into an ecological sensitive sound. SCOTUS dropped the fine from $5 billion to only $500 million, boosting Exxon's value by $23 billion. It is worth nothing that Justice Alito owned Exxon stock and profited massively from the Court’s ruling.
In 2010 the Supreme Court helped ensure we’d never have a free and fair election again by ruling on Citizens United v. FEC. SCOTUS ruled 5-4 that the First Amendment protects political donations as "free speech," opening elections to billions in dark money to buy and sell politicians. Though an astounding 83% of Americans—Republicans, Independents, and Democrats alike—want corporate money out of politics, SCOTUS does not care. As a result of this overt power to buy elections, billionaires spent $1.2B in the 2020 election, which is an astounding 70 times more than what they spent in the 2008 election—pre-Citizens United. In the 2024 election, maniacal billionaire Elon Musk spent $175M of his own money to elect Trump, and is now wielding that influence to gut life critical departments including HHS, Social Security, Medicaid, Medicare, and more. The Supreme Court’s ruling ensured corrupt corporate funded politicians stay in power with ease, State and Congressional level gerrymandering becomes the norm, and gave the wealthy a nearly insurmountable advantage to stay in office.
In 2013 the Supreme Court further eroded our elections in Shelby County v. Holder by stripping down voting rights. SCOTUS ruled 5-4 to gut the Voting Rights Act of 1964—specifically provisions that prevented historically discriminatory states and counties from disenfranchising BIPOC voters. Unsurprinsgly, after Shelby, red states closed thousands of polling locations in disproportionately BIPOC neighborhoods, affecting turnout and flipping elections red. GOP states have subsequently introduced hundreds of voter suppression bills, passing dozens, further marginalizing Black, brown, and low income voters. In fact, since the Shelby ruling, red states have closed more than 100,000 polling locations in disproportionately low income, Black, and Latino neighborhoods. Modern day Jim Crow by any other name.
In 2016 the Supreme Court advanced government tyranny in Utah v. Strieff. SCOTUS ruled 5-3 to permit police to admit evidence in a criminal trial even if it was procured by illegal searches—despite 4th Amendment ban on illegal government searches. This ruling particularly targets BIPOC communities who already face at least six times higher charge/arrest rates than do white Americans. Now, police officers can more easily procure evidence through illegal means, blurring the line between the right to privacy, and making it more difficult to stop bad police actors from planting evidence or even targeting citizens in violation of the Fourth Amendment. This ruling was a boost for fascism and for the private prison industry.
In 2018 the Supreme Court advanced religious bigotry in Trump v. Hawaii. SCOTUS ruled 5-4 to uphold Trump's racist & discriminatory "Muslim Ban." A ban he admitted was designed to cause as much harm as possible, and one he could not prove had any national security value. So much for US Constitution's ban on religious tests.
In 2021 the Supreme Court shockingly defended child slavery in Nestlé USA, Inc. v. Doe I. SCOTUS ruled near unanimously, 8-1, that children kidnapped, enslaved and forced to go to the Ivory Coast to produce for American corporate giants like Nestle, could not sue Nestle for damages for enabling child slave labor. Yes, it is as horrific as it sounds. Nearly 175 years after ruling in Dred Scott that enslaved Black people are subhuman and therefore unworthy of protection from exploitation by American corporations, the Court found a way to rule in Nestle that enslaved African children are unworthy of protection from exploitation by American corporations.
In 2022 the Supreme Court undid half a century of precedent in Dobbs v. Jackson Women’s Health Organization. SCOTUS ruled 6-3 that women do not have autonomy over their own bodies. The Court repealed Roe—despite 72% of Americans favoring Roe, despite all the data that abortion bans do not decrease abortion rates but increase maternal mortality by 24%. The Court repealed Roe, despite four justices—Alito, Gorsuch, Kavanaugh, and Barrett—affirming that they viewed Roe as settled law, settled precedent, and the law of the land.
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In 2023, the Supreme Court repealed Affirmative Action. The SCOTUS ignored the clearly racist Legacy Admissions policy which disproportionately benefits wealthy white people, but gutted Affirmative Action because it marginally helps Black and brown people (even though the single largest demographic of people who benefit from Affirmative Action are white women—more than Black, Latino, Indigenous, and Asian people combined).
In 2024, the Supreme Court granted Presidents virtually unlimited immunity. SCOTUS ruled on the question of whether Trump has immunity as President from accountability for otherwise criminal acts, and essentially granted him near unlimited immunity. So much for no Kings?
And now in 2025, the Supreme Court tacitly approves the destruction of Due Process as Trump disappears immigrants. Justice Sotomayor wrote in her scathing dissent of this fascist ruling:
The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them. The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.
The Future of SCOTUS Injustice
Indeed, the 21st century SCOTUS has largely continued the SCOTUS trend of the 19th and 20th centuries of ruling against the will of the American people, and in favor of the wealthy and powerful. In addition to overturning presidential elections, stripping down voting rights, destroying our climate, devastating the right to privacy, and destroying personal bodily autonomy, SCOTUS in the 21st century has also further enabled wrongful incarceration, further dissolved religion/state separation, further decreased safety from gun violence, further enabled discrimination for being Queer, stripped down affirmative action and racial justice in education and the work place, and further harmed economic justice for students suffering under predatory loans.
Again, I could go on.
But I believe I’ve made the point. And history reminds us what’s at stake. I’ve long argued that we must enforce term limits and expand the Court—and indeed Biden could have made that push but chose not to.
Conclusion
When the Court overruled the 1875 Civil Rights cases, it took nearly a century—until 1964—for those rights to finally be codified once more. Now, only 60 years later those rights are once again being stripped down piece by piece—by the Supreme Court no less. Who knows how long it will take us to recover? Indeed this is why the late great John Lewis said:
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
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On Monday, the Supreme Court’s six conservatives legalized racial profiling, allowing ICE to snatch any non-white person off the street and lock them up until they “prove” their citizenship.
And they did it on the shadow docket, simply mumbling that the lower court’s order was “stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”
This was clearly a calculation by five justices that it was better to remain silent and be thought of as a bunch of racist hacks with no regard for law or precedent than to speak out and remove all doubt. But Justice Kavanaugh, channeling his inner Col. Jessup, refused to sign on to the plan.
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Kavanaugh penned a concurrence confirming that, yes, the conservative justices are motivated by gutter racism. And they absolutely do intend to shred five decades of Fourth Amendment jurisprudence to make it happen.
YOU’RE GODDAMN RIGHT THEY ORDERED THE CONSTITUTIONAL CODE RED, SON! And they’ll do it again.
Perdomo v. Noem
In June, the Trump administration unleashed wave after wave of immigration sweeps in Los Angeles. The footage of heavily-armed, masked men in tactical gear indiscriminately detaining every brown person they could get their hands on shocked the country.
Multiple men who were detained, along with several immigrant rights groups, sued in federal court seeking to block the dragnets, and on July 11, Judge Maame Frimpong issued a 52-page order enjoining the government from using race as a basis for stopping individuals and demanding proof of citizenship. Specifically, she barred “detentive stops in this District unless the agent or officer has reasonable suspicion that the person to be stopped is within the United States in violation of US immigration law.”
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In the immigration context, the Supreme Court has defined reasonable suspicion as a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” In 1975, it held in a case called US v. Brignoni-Ponce that driving while Mexican near the Mexican border did not constitute reasonable suspicion to detain someone and inquire about their citizenship.
Citing Brignoni-Ponce, Judge Frimpong barred the government from relying solely on four factors, “alone or in combination,” as the basis for the “reasonable suspicion” required for a detentive stop:
i. Apparent race or ethnicity;
ii. Speaking Spanish or speaking English with an accent;
iii. Presence at a particular location (e.g. bus stop, car wash, tow yard, day laborer pick up site, agricultural site, etc.); or
iv. The type of work one does.
The DOJ appealed, and the Ninth Circuit upheld the trial judge’s ruling, finding that the searches clearly violated the Fourth Amendment’s prohibition on unreasonable seizures by the government.
“[T]he factors at issue here impermissibly ‘cast suspicion on large segments of the law-abiding population,’ including anyone in the District who appears Hispanic, speaks Spanish or English with an accent, wears work clothes, and stands near a carwash, in front of a Home Depot, or at a bus stop,” the three-judge appellate panel agreed.
They added:
This conclusion is amply supported by the record, which shows that US citizens and lawfully present immigrants were seized based on the four factors or a subset of them — including the three US Citizens discussed above, an 11-year-old US citizen at a carwash, a lawfully present day laborer outside a Home Depot, and a legally present immigrant who was stopped by Defendants once while driving and again while standing outside a Home Depot.
And so the government raced to DC, demanding that Trump’s six pals at One First Street bail him out. Which they did.
The shady, shady shadow docket
It’s impossible to separate what happened in this case from the larger debate about the shadow docket, where the Court issues rulings without the benefit of full briefing and argument on the merits.
Lawyers have long condemned these ostensibly emergency orders, which are often unsigned and just a paragraph long. But the public only became aware of the issue in 2021 when the Court basically overturned Roe v. Wade on the shadow docket, staying a lower court’s order and effectively allowing Texas to ban abortion.
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Justice Samuel Alito, who later penned the Dobbs decision officially overturning Roe, has been exceptionally thin-skinned about criticism of the Court’s shadow docket rulings.
“Recently, the catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he seethed in 2021. “This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
But since Trump’s return to the White House, the conservative justices have routinely used the shadow docket to take a Sharpie to lower court rulings requiring the Trump administration to comply with the law. Public criticism of the shadow docket is at a fever pitch. Frustrated trial judges complain anonymously to NBC’s Lawrence Hurley that they feel “thrown under the bus,” and US District Judge Allison Burroughs even included an angry footnote in the Harvard funding case warning that “the Supreme Court’s recent emergency docket rulings regarding grant terminations have not been models of clarity, and have left many issues unresolved.”
All of which is to say that the Supreme Court’s conservatives are keenly aware that every shadow docket order chips further away at their own legitimacy. And still five justices were willing to pay the price when it came to the racial profiling order. Rather than explain their reasoning, or rebut the bitterly angry dissent by Justice Sotomayor for the Court’s three liberals, they offered a single paragraph of legalese, devoid of any reasoning or explanation.
But Justice Kavanaugh refused to go along with the plan. Instead, he explained his own thinking in a concurring statement. And that thinking was shockingly racist.
Justice Leeroy Jenkins
Kavanaugh began by accepting the government’s claim that one in 10 residents of LA is an undocumented immigrant. There is no citation for this figure, and there’s some evidence that it’s wildly inaccurate. But it undergirds Kavanaugh’s entire legal theory, so he wasn’t about to factcheck it!
“Not surprisingly given those extraordinary numbers, US immigration officers have prioritized immigration enforcement in the Los Angeles area,” he went on, noting “the myriad ‘significant economic and social problems’ caused by illegal immigration.”
That internal quote about immigrants causing “significant economic and social problems” is actually dicta from Brignoni-Ponce, a decision which is five decades old. Recent data proves that immigrants greatly strengthen the US economy and commit crimes at significantly lower rates than native-born Americans — which is why only blood and soil nationalists say that stuff today.
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And while Kavanaugh was happy to cherrypick quotes from Brignoni-Ponce, he wildly mischaracterized its holding. There, the Court ruled that race plus location could not add up to reasonable suspicion because it would necessarily sweep up lots of people who were entirely innocent — the exact opposite of Kavanaugh’s conclusion, even with his demographic fudge to make it seem like every brown person ICE encounters in LA is likely to be an undocumented immigrant.
Kavanaugh went on to grossly mischaracterize the nature of the roving immigration patrols. Here’s his cheerful description of the interactions:
Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a US citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
Here’s how Judge Frimpong, who actually heard testimony from the plaintiffs, characterized it:
Agents and officers approach suddenly and in large numbers in military style or SWAT clothing, heavily armed with weapons displayed, masked, and with their vest displaying a generic "POLICE" patch (if any display at all). Agents typically position themselves around individuals, aggressively engage them, and/or shout commands, making it nearly impossible for individuals to decline to answer their questions. When individuals have tried to avoid an encounter with agents and officers, they have been followed and pushed to the ground, sometimes even beaten, and then taken away.
And here’s how that “brief encounter” went down for one US citizen, as summarized by Justice Sotomayor:
On June 9, immigration agents arrived at a tow yard in Montebello “carrying handguns” and “military-style rifle[s].” Jason Gavidia, a Latino US citizen, was working on his car in the tow yard that day. A masked agent ordered Gavidia to “‘[s]top right there’” and began asking him questions. Agents then asked Gavidia whether he is “American at least three times”; three times, Gavidia affirmed that he is. Unsatisfied, the agents asked Gavidia for the name of the hospital in which he was born, and when Gavidia could not immediately recall, the agents racked a rifle, took Gavidia’s phone, “pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” Agents released Gavidia only after he offered up his REAL ID. That ID was never returned to him.
Kavanaugh closed by pretending that undocumented immigrants are not entitled to the protections of the Constitution.
“[B]y illegally immigrating into and remaining in the country, they are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process,” he tut-tuts. “For those reasons, the interests of illegal immigrants in evading questioning (and thus evading detection of their illegal presence) are not particularly substantial as a legal matter.”
That is simply not the law.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Nowhere does it refer to “citizens,” and the Supreme Court has long held that non-citizens are entitled to due process and other protections of the the Constitution.
Trying to hive off non-citizens from “the people” really gives the whole racist game away.
Hiding their shame
It’s not clear why Justice Kavanaugh indulged himself in this embarrassing display. Perhaps he’s so chagrined by critiques of the shadow docket that he simply couldn’t help himself. He has been assiduously trying to rebrand it as the “interim docket,” presumably to make it sound less, well, shady.
But there was a way to do this without disgracing himself and the Court. Indeed, Kavanaugh took a brief breath in the midst of explaining why Latinos are outside the protection of the law to opine that this case should probably be dismissed on standing grounds alone. That is, by finding that the plaintiffs here aren’t entitled to sue, the conservatives might be able to give Trump what he wants without explicitly endorsing racial profiling.
Kavanaugh could have explained his position without showing his whole hood, and his colleagues may ultimately seize that fig leaf when they hear the case in regular order. But thanks to Kavanaugh’s big mouth, no one will buy that ruse.
As Maya Angelou said, “When people show you who they are, believe them.”
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