Dred Scott to Noem: SCOTUS Creates a Permanent Brown Underclass
Each century’s SCOTUS had its defining wrong. We’ve had two—and more are coming.
Were There Any Doubt…
The United States is in the midst of a full authoritarian coup being carried out in plain sight, with a fully complicit Judiciary and Congress. Today marked one of the darkest days I have experienced—in terms of the sheer breadth of damage to the constitutional order in the United States, to the freedoms we all should cherish, and to decency and humanity as a fundamental goal of the federal government.
The Supreme Court, on an emergency docket, took Noem v. Vasquez Perdomo, a case from DHS to stay an injunction on one of the most plainly unconstitutional practices imaginable: rounding people up based on race, accent and socioeconomic class. Brett Kavanaugh wrote the majority opinion that it’s “common sense” to round up all the brown people at any Home Depot, factory, or front yard that ICE decides might have “illegals.”
Supreme Cult
The ruling is another example of the three-ring legal acrobatics the Roberts Court has specialized in to further its extremist agenda—including embarrassingly political rulings:
Heller (proliferated guns)
Citizens United (dark money in politics)
Hobby Lobby (dismantling gay rights)
Dobbs (overthrows Roe v. Wade)
Noem (ratifies racial profiling)
Here is what Justice Sotomayor said in her dissent:
“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. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
Korematsu…
This ruling is in many ways worse than Korematsu v. United States, which upheld that because of WWII and “military necessity,” Japanese-Americans could be put into internment camps in West Coast “exclusion zones” just on the basis of their ancestry. Korematsu is rightly thought of as one of the worst decisions in Supreme Court history.
Even John Roberts, in Trump v. Hawaii (2018), said:
“Korematsu v. United States … was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”
… But Worse
Noem v. Vasquez Perdomo, however, was not based on a time-limited emergency like WWII—or any emergency at all. It is not based on any military necessity; it was simply a gift of arbitrary violence from the Judicial Branch to the Executive. What this ruling does is permanently create an underclass of brown people—no matter whether they are citizens or not—who have no way to defend themselves from unconstitutional search and seizure.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment, Bill of Rights, US Constitution
As a citizen of Los Angeles, I can say from direct experience that all people of color, regardless of immigration status, are terrified to walk, drive, shop and otherwise carry out their lives for fear of ICE or some other unknown agency pulling them over, throwing them to the ground and disappearing them to a distant location. It is real already. Now the Supreme Court, which is supposed to uphold our constitutional protections, has sanctioned the systematic racial profiling of 65 million Hispanic-Americans—or any other ethnic minority they choose.
Again, this is peacetime, the only emergencies are manufactured. Crime is steadily declining. But a few days after Trump posted about using the “Department of War” on a major American city, this corrupt court gave him carte blanche to do it with ICE. It is a legal sanctioning of Trump’s policies of terrorizing American cities with bands of masked, violent thugs.
Korematsu was wartime hysteria. Noem is peacetime policy.
Korematsu was limited by geography. Noem has no boundaries.
Korematsu was temporary. Noem is forever.
Dobbs Should Have Been a Constitutional Crisis
The Dobbs ruling, which took away the right of a woman to choose, was a signal by the Court that it had no respect for precedent or the will of the American people, and was a clear shift away from the core purpose of government—to expand freedom, not to restrain it.
“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law, there is no freedom.” —John Locke (1690), called the “Philosopher of the Revolution”
By overtly restricting the rights of half of the American people and overturning a half-century of precedent, this Court proved that it was not constitutionally driven, but ideologically driven. Specifically, six of the nine members are extremist Christians who believe—to slightly varying degrees—that the United States ought not be what the founders envisioned, a constitutional republic, but instead a monarchist theocracy.
Dobbs was the canary in the coal mine and Noem is the dynamite.
Freedom From Religion
The founders of the nation could not have been clearer on this subject. None of the founders wanted a Christian government—or any religious involvement at all. It was core to the Revolution and to their idea of the American experiment. That’s why the Establishment Clause which guarantees freedom from religion constitutes the first ten words of the First Amendment to the Constitution. It was that central. As Thomas Jefferson said in 1782, in Notes on the State of Virginia:
“But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
This move towards a religious government could not have been made more clear than by Donald Trump’s only public appearance today—at the Museum of the Bible. Trump gave his standard unhinged rant, but added slightly more Christianity whenever he remembered, largely leaving himself as the arbiter of what is divine and what isn’t. Trump believes that it was divine providence, for example, that he, Donald Trump, is solely responsible for the World Cup and the Olympics coming to America—a claim which is completely counterfactual.
“The amazing the way God works is great. Isn't it amazing the way God works? It's true. I got the Olympics. You look because I'm a little bit of a selfish person, I guess.”
The Least Godly Man Alive
The surrounding context of Trump’s attempt to pander to his Christian base was that another federal court adjudicated that Donald Trump still owes E. Jean Carroll $83.3 million dollars for raping her—or whatever legal term they used for it. And just after the event ended, House Democrats released the birthday card that Donald Trump gave to Jeffrey Epstein—of what is decidedly not an adult woman.
E. Jean Carroll and the Epstein survivors are Trump’s kryptonite because proof of his complicity, or participation, in child sex crimes or rape would destroy his hold on his base—and potentially his hold on the presidency.
Midway Blitzkrieg
Today, while Trump was playing the role of savior at a Bible museum, and his ego was being battered by validations of his own predatory sexual behavior, Trump launched “Operation Midway Blitz”—promoted as an immigration enforcement surge into Chicago.
Midway has a double-meaning. It is both an airport in Chicago which celebrates its central location, and the name of an infamously brutal battle in WWII.
“Blitz” had a special meaning in WWII, it was short for Blitzkrieg, “lightning war,” a word used by the Nazis to describe a combined armed forces surprise attack on the Allies. The word blitz was not used by Allied Forces for this reason. Only Nazis turned cities into battlefields. Trump has chosen their language deliberately.
Dred Roberts
Trump’s psychology and the behavior of the federal government have been completely merged. As Trump’s collapse deepens further, he will increasingly protect this fear and rage through his sycophants like Pam Bondi, Kash Patel and Pete Hegseth onto scapegoats—like immigrants, trans people, and “radical Democrats”
The Supreme Court’s green light for ICE to select a class of people based on their personal characteristics, including race and accent, and to do a search and seizure of anyone they think fits that description with no due process is, I fear, just the beginning of the highest court in America attempting to shut down democracy once and for all. There is no reason, based on the twisted chain of logic they’ve constructed, to think they won’t do this to other scapegoats—racial, political or religious.
Trump is already attempting to take away guns from trans people—because the regime falsely alleges that being trans is a mental illness. But it is quite remarkable from a man supposedly so absolutist in its “2A” beliefs, that he removed ownership restrictions placed on mentally ill people on day one of his first administration.
Dred Scott v. Sandford (1857) is arguably the worst Supreme Court decision of all time. It was so spectacularly bad that it led to a bloody Civil War. In Dred Scott, SCOTUS ruled that African-Americans, freed or slave, could never be American citizens. The court decision relied on plantation logic and racist pseudo-science that slaves were “inferior beings.” The Taney Court, in hot competition with the Roberts Court for the worst in history, essentially paved the way for slavery to spread all across the nation, a prospect the North, and Abraham Lincoln, could not abide.
Noem v. Vasquez Perdomo is of similar consequence. Now blue states and cities are facing a similar choice as the North in the late 1850s. A racist practice of repressing and othering a scapegoat is threatening to come to our towns and threaten our friends, neighbors, families, and ways of life. How do we respond? Do we let it happen—or do we take a stand, as Lincoln did, to protect the Union?
Common Sense
In Noem v. Vasquez Perdomo, Brett Kavanaugh used the phrase “common sense judgements” to describe the arbitrary requirements for search and seizure of Americans in violations of the Fourth Amendment.
“As this Court has repeatedly explained, the Fourth Amendment’s reasonableness inquiry incorporates not only precedent but also the common sense judgments of officers on the ground who must make rapid assessments in difficult circumstances.”
The extremely weak precedent in this case is fifty years old, just as old as the precedent of Roe v. Wade. But the Court, for some reason, decided one was important but not the other.
Sotomayor pushed back hard on this specific phrase for a very good reason. It is the source of the corruption and the violence—a small crack a tyrannical government will drive a column of Humvees through:
“Labeling racial and linguistic proxies as common sense factors does not make them constitutional. What the concurrence calls common sense, the Constitution calls arbitrary
But “Common Sense” was also the name of arguably the most important political pamphlet of all time, by Thomas Paine. [Internet Archive]
It was published in January 1776 and sold at least 150,000 copies in the Colonies (population ~2.5M) and was absolutely central to the Revolution.
“Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one.”
Finally, Paine gave a vision, which turned out to be more true that he could have imagined.
“‘TIS TIME TO PART. We have it in our power to begin the world over again.”
It is just common sense. Long live a free America.
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Most of us have heard the stories about drivers being stopped and harassed by police for "driving while black". Now we're being told by SCOTUS that it is "common sense" that ICE should be able to wontonly apprehend those who are "existing while Brown". By what definition should this ever be considered common sense.
Since we are moving closer and closer to requiring Aryan purity, I guess that common sense dictates that all of you out there with brown eyes should start preparing to be next.
Democrats need to shut the damn government down. Trump's criminal regime is out of control.
Stock up on essentials Prepare yourself for hardships to come. The sacrifices that may be required now in a Hail Mary move to stop the rapidly accelerating spread of tyranny will pale in comparison to the suffering of living under authoritarian rule.
The public needs to enhance the shutdown with intensified protests, boycotts and general strikes. If your union leaders don't support labour walkouts, they need to be challenged for being complicit in crimes against democracy.
Presently, America is engaged in a racially fuelled soft civil war. There is little hope that justice will prevail and resolve the blatant attacks on liberty, as the Supreme Court has demonstrated its subservience to the radical right.
Stopping the flow of funds to the government, the banks and the billionaires may be one of the last peaceful options in your arsenal.