Supreme Court ruling allowing race-based immigration stops hampering relief from government misconduct, legal scholar argues

LAWRENCE — Immigration enforcement has drawn criticism and spurred protests across the country during President Donald Trump’s second term, and the Supreme Court recently ruled that some of the controversial tactics agents have used to detain people can continue. 

A University of Kansas law professor wrote in a new essay that a concurring opinion from Justice Brett Kavanaugh in Noem v. Vasquez Perdomo, a case concerning ICE raids in Los Angeles, misses the mark doctrinally and factually in several intersecting ways.

In September 2025, the high court stayed a lower court preliminary injunction that temporarily prohibited federal agents from detaining people based on their suspected ethnicity or where they worked, as federal officials argued those factors could lead agents to suspect they are in the United States illegally. Sharon Brett, associate professor of law, wrote that Kavanaugh’s concurring opinion especially, and the decision itself, are examples of federal courts making it difficult for people to get relief in cases of government misconduct.

“Justice Kavanaugh concurred in the stay of the lower court’s injunction and wrote separately to make two points: He felt the plaintiffs lacked standing to seek an injunction under City of Los Angeles v. Lyons, and he felt the plaintiffs were unlikely to be successful on their underlying Fourth Amendment claims. On both points, Justice Kavanaugh was wrong,” Brett said. “I think the concurrence is a very clear distillation of the overlapping doctrinal impediments people face in getting relief from government misconduct.” 

Brett’s prior scholarship has analyzed several of these impediments in detail, asking why judicial doctrines have developed in a way that undercuts the promise of watershed civil rights legislation passed in the last 60 years.

In the case comment, published in the New York University Law Review, Brett detailed in five parts the analytical flaws with Kavanaugh’s decision, how it is allowing for further government misconduct and what it might mean for future cases.

In the summer of 2025, federal immigration agents began conducting operations in Los Angeles to detain and deport people suspected of being in the country illegally. That included arrests at businesses and public places. Plaintiffs sued to stop the actions, which they claimed violated Fourth Amendment rights preventing unreasonable searches and seizures. A lower court agreed, issuing an injunction, which was upheld by the Ninth Circuit Court of Appeals. 

But the Supreme Court issued a stay of the injunction on its emergency shadow docket. In a concurring opinion supporting the grant of the stay, Kavanaugh first found the plaintiffs did not have standing to seek an injunction because they could not show they would be detained by ICE officials in the future.

Brett, who has also published prior research on the complex issue of standing to sue for injunctive relief, wrote that Kavanaugh’s reasoning is both an inaccurate application of Lyons and factually wrong, as people have been stopped or detained repeatedly since the ruling.

“There have been countless examples of people being detained without reasonable suspicion since the Vasquez Perdomo decision,” Brett said.

Further, Brett said Kavanaugh’s analysis cherry-picks Fourth Amendment jurisprudence and fails to account for the constitutional limits that can and do apply to ICE’s immigration enforcement efforts. In the opinion, Kavanaugh wrote that stops of people based on their appearance or where they work should be allowed, justifying these actions based on the need to crack down on illegal immigration.

“The Fourth Amendment requires individualized reasonable suspicion — not generalized suspicion. The controlling precedent in the jurisdiction where Vasquez Perdomo was initially decided, the Ninth Circuit, is explicit on this: There is nothing individualized about subjecting all Hispanic-looking individuals in a Home Depot parking lot to stops and detention,” Brett wrote. “The Ninth Circuit’s case law is clear that ‘Hispanic appearance is of little or no use in determining which particular individuals among the vast Hispanic populace should be stopped by law enforcement officials on the lookout for illegal aliens. Otherwise, Justice Kavanaugh’s arguments would, if broadly accepted, have a profound impact of turning everyone who fits a certain profile in a targeted area into an immediate suspect.”

Following her legal analysis, Brett concludes her piece by examining what the ruling means for future litigation. In terms of precedent, she wrote, it means nothing; it was only a concurring opinion, not signed by any other justices. 

Practically, though, Brett wrote that the ruling allowed ICE to continue conducting raids and stops with the same tactics while the case continues to be litigated in lower courts. The case could potentially return to the high court. 

Brett, who has both studied cases of official misconduct and represented clients in Fourth Amendment litigation and when seeking redress for official misconduct, said she hopes her analysis will assist courts in approaching these cases with doctrinal and practical accuracy.

“Part of the reason for writing this article is in hoping the flaws in Vasquez Perdomo aren’t repeated in subsequent appeals and that other courts do not adopt Justice Kavanaugh’s analysis of Lyons in other contexts,” Brett said. As she wrote in the study’s conclusion, “The errors in Justice Kavanaugh’s concurrence will have downstream consequences both practically and doctrinally. Normatively, the courts can and should do better.”