Adam Serwer writes:

Last July, while on his way to his job as a security guard at a cannabis farm in California, George Retes was tear-gassed, pepper-sprayed, and arrested by federal agents conducting an immigration raid. The agents ignored the license plate on Retes’s car and the sticker on his windshield, both of which identified him as a U.S. Army veteran, and did not even bother to determine whether he was a citizen before strip-searching him and locking him up in a cell. Retes was detained overnight without any opportunity to call a lawyer or his family.

“No one deserves to be treated like this,” Retes told this magazine after his release. “To have no rights. It’s just crazy to think about—that they can just mask up and take someone off the street, no questions asked, and you’re just gone.”

Retes is one of an estimated 170 American citizens who have been detained by federal immigration agents as part of President Donald Trump’s mass-deportation campaign, according to ProPublica, which warns that the count is both incomplete and unofficial because the federal government is not documenting its own abuses of power. At least 20 of those citizens, ProPublica found, had been detained overnight and incommunicado—a violation of their constitutional rights. When questioned about these detentions, Trump-administration officials claimed that the citizens had assaulted federal agents—an assertion proved false in many cases by video evidence or an inability by the government to produce serious charges reflecting the accusations. (One thrown sandwich hardly counts.)

Across the country, federal agents are flagrantly and casually disregarding Americans’ due-process rights. And they have been remarkably forthright about how they choose their victims. As Gregory Bovino, a top Border Patrol commander, told a white reporter: Agents were arresting people based on “the particular characteristics of an individual—how they look. How do they look compared to, say, you?”

In Memphis, Reggie Williams told ProPublica that he was instructed by federal agents to keep his ID on him going forward, as though Black residents of the city were emancipated slaves forced to carry freedom papers lest they be kidnapped and returned to bondage. Bovino said basically the same thing after federal agents assaulted a Somali American citizen and refused to free him for hours despite his offers to show them a photo of his passport on his phone: “One must carry immigration documents,” Bovino posted on X. In Chicago, Maria Greeley was zip-tied by federal agents coming off a double shift at the bar where she worked. She had her passport and showed it to them, and still they detained her because, she said, she did not “look like” a Greeley.

This is racial profiling. And the Supreme Court has declined to stop it.

In September, an emergency docket decision effectively permitted this racial profiling by lifting a court order preventing it. “The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs,” Justice Brett Kavanaugh wrote in a lone concurrence. Although “apparent ethnicity alone” isn’t enough to detain someone, it can be a “relevant factor,” he continued. “Under this Court’s precedents, not to mention common sense, those circumstances taken together can constitute at least reasonable suspicion of illegal presence in the United States.”

What this means in practice is that if you are not white, you cannot go certain places without the risk of being kidnapped by federal agents. That is not “common sense”; it is the nullification of the Constitution’s guarantee of equal rights under the law.

This decision is only one of the ways that the Court, under Chief Justice John Roberts, has been chipping away at the parts of the Constitution dedicated to ensuring equal citizenship to all through rulings on voting rights, immigration, and equal protection. It has done this even as it insists—while striking down affirmative action and school-integration programs—that the Constitution is “colorblind.”

The Constitution of the Roberts Court is not color-blind. It is a Constitution that permits discrimination on the basis of race, but forbids alleviating discrimination on the basis of race. And over the next year, the Court will face more cases that could further erode both the Fourteenth and Fifteenth Amendments, pushing America back toward what some on the right believe is the true, Antebellum Constitution. [Continue reading…]