Even if nothing else was taking place at this perilous moment, the September 8 SCOTUS decision to temporarily suspend both a presumption of innocence as well as the right, previously guaranteed by the 4th Amendment, not to be seized absent a reasonable suspicion of unlawful status, is deeply disturbing. Taken in context of recent events, the Court’s decision on the “shadow docket” poses an ominous threat.

The decision was handed down after the “dangerous sociopath“, President Donald J. Trump, threatened to arrest California Gov. Gavin Newsom, one of his chief political rivals. More importantly, perhaps, it was handed down shortly after Trump threatened to use the U.S. military to invade Chicago.

If the same SCOTUS majority goes on to temporarily suspend the Order issued on September 2nd by U.S. District Court Judge Charles E. Breyer, that enjoined Trump’s use of the military to engage in local law enforcement without the consent of State and local authorities — an action that Breyer ruled to be in violation of the Posse Comitatus Act — it could hasten a bitter end to federalism and to our constitutional republic…

As Justice Sonia Sotomayor explained in a powerful dissent, joined Justices Kagan and Jackson, a U.S. District Court found “ample evidence” that Latinos, including both lawful residents and U.S. citizens, were swept-up in mass raids and incarcerated based solely on one or more of four enumerated factors: ethnicity, speaking Spanish or English with an accent, their location or the type of work they engaged in.

In accordance with the 4th Amendment, Sotomayor noted, the District Court issued a temporary restraining order that “enjoined [ICE] from conducting detentive stops…unless the agent or officer has reasonable suspicion that the person stopped is within the United States in violation of U.S. immigration law.” Both the District Court and the 9th Circuit Court of Appeals concluded that none of the four enumerated factors, alone or in combination, establish the “reasonable suspicion” needed to justify an arrest.

As Sotomayor observed…

Justice Brett Kavanaugh, in his concurring opinion with the majority, attempted to evade the factual record and judicial findings before the Court by suggesting that ICE agents were merely questioning Latinos about their immigration status.

ICE, he wrote, may “briefly detain” an individual “for questioning” if they have “a reasonable suspicion, based on specific articulable facts, that the person being questioned.. is an alien illegally in the United States”. After that “brief” dentention, he argued to determine if the person is a U.S. citizen or lawfully present, they “promptly let the individual go.”

The factual record illustrated, however, that is wasn’t only lawful Latino residents, but also Latino U.S. citizens, who were being swept up in wholesale raids, arrested and incarcerated without access to counsel. A far cry from being “briefly detained”. The Trump nominated Justice then cited gross statistics — the presence in California of as many as 2 million undocumented immigrants — as if that somehow justifies mass violations of the 4th Amendment right against unreasonable seizure. In doing so, Kavanaugh also ignored the presumption of innocence that everyone residing in the U.S. is entitled to.

Kavanaugh’s concurring argument didn’t sit well with Justice Sotomayor…

The majority’s stay of the lower court rulings is directly at odds with a 1975 U.S. Supreme Court precedent, United States v. Brignoni-Ponce. In that case, Sotomayor noted, the Court held that “‘Mexican ancestry’ alone did not constitute reasonable suspicion to support stops by Border Patrol agents even near the border, because ‘[l]arge numbers of native-born and naturalized citizens have the characteristics identified with Mexican ancestry.’ [Citation].”

“The Fourth Amendment”, Sotomayor concluded, “prohibits exactly what the government is attempting to do here: ‘seize individuals based solely on a set of facts that ‘describes a very large category of presumably innocent’ people’. [Citation].”

There’s an issue that was not addressed by Justice Sotomayor. It is one that should concern everyone who values freedom and democracy. Will the same right-wing U.S. Supreme Court majority that has rolled over for the Trump regime by ignoring long-standing precedent to protect 4th Amendment rights guaranteed for Latinos (and everyone else), roll-over again with respect to an outright invasion of a U.S. city by the U.S. military?

Can federalism and our constitutional republic survive if they do?