The disastrous recent “shadow docket” decision by the U.S. Supreme Court in Noem v. Perdomo in the most literal sense permits ICE to detain people 1) that appear Mexican and/or are from Central American countries; 2) speak with an accent or speak Spanish; 3) gather at certain places of employment in the L.A. area that “are especially attractive to illegal immigrants”.

In other words, if you look Mexican, have an accent and are at Home Depot in Los Angeles, ICE can detain you with no other justification. If you don’t believe me those are the principles laid out by Justice Kavanaugh - read it for yourself. This ruling doesn’t just impact people with Latino backgrounds; the rationale Kavanaugh lays out can be modified to apply anywhere to anyone, regardless of your ethnicity and background. Kavanaugh ridiculously calls this “common sense”.

Let me give you an example - the KKK is a terrorist group - this is true. Under the Court’s rationale, it is well known that Mississippi and Alabama have high concentrations of KKK members, and that KKK members are overwhelmingly white, and many KKK members speak with a southern accent and gather in churches. Thus it is common sense and reasonable that white southerners with accents that are in churches in Mississippi and Alabama can be detained on suspicion of being a KKK member. If you think that sounds ridiculous then you’re right, but it’s no different than what this court just ruled.

If you think it is okay for the state to detain people based on ethnicity then I strongly encourage you to read up on 20th Century history. I would also encourage you to read the Fourth Amendment of the U.S. Constitution which protects against arbitrary arrests.

I believe history will judge this to be among the worst decisions by the Supreme Court, and this made me think about the current accepted structure of how SCOTUS operates and why maybe this should change.

The 9th and 10th Amendments of the Constitution each cover rights retained by the People. These amendments remind us the Constitution does not solely belong to SCOTUS; the people are ultimately responsible for the Constitution and ensuring its success. The power of the Supreme Court to determine whether laws are Constitutional or not - known as “judicial review” - was outlined by Chief Justice John Marshall in 1803 in Marbury v. Madison. Lawyers are trained in our first year of law school that this is a fundamental principle of American jurisprudence. But judicial review is not found in the Constitution.

One reason I can speculate why judicial review is not in the Constitution is while it was clear that the Framers knew the risks in empowering a strong executive, I imagine they also knew the danger of rule by judicial fiat. The Supreme Court has gotten it very wrong many times throughout history - Dred Scott, Plessy v. Ferguson, Lochner v. New York, Citizens United, Shelby County v. Holder, Dobbs, the most recent case of Noem v. Perdomo, I could go on.

There is an erroneous view of the Supreme Court in the 1950s and 60s under Chief Justice Earl Warren as an “activist” court, “expanding rights” that “don’t exist”. In reality, the Warren court was attempting to undo a lot of historical damage, whether via Brown v. Board, Miranda v. Arizona, Loving v. Virginia, Griswold v. Connecticut and others. Instead of being activist, the Warren Court was pointing out the rights we do have, both naturally - see 9th and 10th Amendments - and in the Constitution. But the current court is an activist one, seemingly hellbent on hurling us back to an era where once again the Supreme Court pretends some rights in the Constitution don’t exist.

What this means is judicial review is right now being weaponized to strip away rights and implement totally made up doctrines - such as presidential immunity - by ideological judges with a result based agenda. These rulings completely ignore the text and meaning of the Constitution. Judicial review does have and will continue to be a necessary aspect of the judiciary, but it can use some reform - perhaps in the form of term limits and national “ballot initiative” style referendums, whereby 60% of the nation can perhaps say this ruling is wrong. The ballot idea could be done by an act of Congress, term limits would need a Constitutional Amendment. What we have now is a corrupt and radical ideological court. (As a side note, read my essay highlighting Amy Coney Barrett’s view the 14th amendment is possibly illegitimate).

Justice Ketanji Brown Jackson hit the nail on the head when she said the Court is engaging in the Calvin and Hobbes game of “Calvinball”: In Calvinball there are no rules and the Court is playing Calvinball with a twist - there are no rules except one, and that this Administration always wins.

The colonies and states had the concept of judicial review at the time, and the Framers could have included it but they did not. What they did include was the Bill of Rights; this plus the 13, 14, 15, 19 Amendments and the collection of Civil Rights Acts are the law, and courts do not have the right to limit or take our fundamental civil rights away.

When the state takes away rights from some of us, they take it away from ALL OF US.