Transparency of Supreme Court's hidden docket revealed in immigration arrest decision

A federal judge in Washington, D.C., has barred authorities from conducting civil immigration arrests without warrants unless the individual is deemed a flight risk. In an 88-page decision issued Tuesday, U.S. District Judge Beryl Howell ruled that the immigrant plaintiffs were likely to succeed in their claim that the government has been carrying out such arrests without probable cause.

While rejecting one argument put forth by the Trump administration, Howell highlighted the opaque nature of the Supreme Courts shadow docket, a mechanism where the justices occasionally issue significant rulings without providing detailed reasoning.

Howell referenced a Supreme Court case from September, Noem v. Perdomo, where the Republican-majority court lifted a judges order limiting racial profiling by agents in Los Angeles without explanation. Justice Brett Kavanaugh was the only member to write separately, giving rise to what has been dubbed Kavanaugh stops by legal observers.

In the D.C. case, the federal government cited Kavanaughs concurrence, suggesting that the plaintiffs in Perdomo lacked standing under Supreme Court precedent. However, Howell noted that even the government admitted that Kavanaughs opinion did not constitute binding law. The Court majority merely issued a one-paragraph order granting a stay without any explanation for its holding, Howell wrote. Why the Court ruled as it did remains unclear, and without reasoning, this order cannot even be considered persuasive.

Howell distinguished her case from Perdomo, emphasizing that it involves civil immigration arrests rather than stops, and that plaintiffs contend the government abandoned the proper legal standard entirely rather than disputing its application.

Lower court rulings against federal immigration enforcement raise questions about how the Supreme Court might respond if the government seeks an emergency appeal. With the shadow docket, the justices are not obliged to explain their decisions, leaving outcomes uncertain.

Author: Olivia Parker