What Does An American Look Like? Dissecting The Implications of Noem v. Vasquez Perdomo

by Abriana Malfatti, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

“But since my intent is to write something useful to whoever understands it, it has appeared to me more fitting to go directly to the effectual truth of the thing than to the imagination of it.”¹

The Emergency Docket allows the Supreme Court to issue an order on a case without hearing oral arguments or a full briefing.² These cases are sought under circumstances where detrimental harm will be done unless the Supreme Court issues an order.³ These cases are decided outside of the Court’s regular docket and typically do not contain opinions issued by the Justices.⁴ The Trump administration is using the Emergency Docket to resume its controversial policies when it encounters hurdles in the lower courts.⁵ During the 2024-2025 docket, the Supreme Court received 119 applications for the Emergency Docket, with the Court granting 44% of the applications.⁶ The grant rate of the Emergency Docket during the current term is 67%.⁷ The Supreme Court used the Emergency Docket to grant the Government’s application for a stay in Noem v. Vasquez Perdomo.⁸ In allowing the stay, the Court enabled the Government to continue discriminatory immigration policies that overstep the bounds of reasonable suspicion.⁹

This Article argues that Noem was a misuse of the Emergency Docket, as it creates a broad and oppressive rule that infringes upon one’s Fourth Amendment rights. Part II will discuss both Justice Kavanaugh’s concurrence and Justice Sotomayor’s dissent in Noem. Part III will break down how Justice Kavanaugh misuses the decision in Brignoni-Ponce and underestimates the balancing of harms test. It will then compare the judicial analysis of Sotomayor’s dissent to Kavanaugh’s concurrence. This Article will then argue that Sotomayor’s approach is favorable given the circumstances of the case. It will also argue that in granting the stay, the Court allows a policy that implies that there is a way to look American – which is inherently white. This Article will conclude by highlighting how the Noem decision and the increased use of the Emergency Docket should concern the American public.

II. Background

In Noem, the Supreme Court granted the Government’s application for a stay, allowing United States Immigration and Customs Enforcement agents (“ICE”) to continue using the four factors of: race, speaking Spanish or English with an accent, one’s location, and the type of work one does, to determine reasonable suspicion while the case waits on appeal in the Ninth Circuit.¹⁰The order is temporary and will expire upon the Ninth Circuit’s decision.¹¹ Justice Kavanaugh’s concurrence and Justice Sotomayor’s dissent are the opinions given for the case.¹²

A. Kavanaugh’s Concurrence

Justice Kavanaugh breaks down his concurrence by focusing on the three elements of granting a stay: (1) that the moving party will likely win when the case is heard on the regular docket, (2) the moving party will suffer irreparable harm if the stay is not granted, and (3) that the moving parties’ interests outweigh the opposing parties when weighing the balancing of harms and the public interest.¹³ He notes that he considers the first two elements the most important, and that the balancing of harms becomes necessary in “close cases.”¹⁴ Even when giving the first two factors more emphasis, Justice Kavanaugh finds that the Government wins the balancing of harms test.¹⁵

Kavanaugh uses the decision in United States v. Brignoni-Ponce to demonstrate that the Government will win on its Fourth Amendment claims in addition to suffering irreparable harm if the stay is not granted.¹⁶ In Brignoni-Ponce, the Supreme Court held that one’s “Mexican Ancestry” could not be used as the only factor when determining reasonable suspicion.¹⁷ Kavanaugh argues that Brignoni-Ponce held that reasonable suspicion depends on the totality of circumstances and that here, unlike Brignoni-Ponce, law enforcement agencies are basing their stops on multiple factors rather than a single element.¹⁸ Kavanaugh says that these multiple factors include that many illegal immigrants in Los Angeles come from Mexico and Central America, and that they tend to work certain jobs that do not require paperwork.¹⁹ He concludes that using these factors in addition to basing the stops on one’s race amounts to reasonable suspicion according to the holding in Brignoni-Ponce.²⁰

Moving to the second factor, Kavanaugh uses Trump v. Casa to demonstrate that the Government suffers irreparable harm “[a]ny time” that the Government is “enjoined by a court from effectuating statutes enacted by representatives of its people.”²¹ He adds to this by using Brignoni-Ponce to argue that illegal immigration results in “significant economic and social problems,” making it necessary for The Government to enforce immigration laws.²² He reasons that the Government has an obligation to impose strict law enforcement efforts, and the injunction will chill its ability to enforce immigration laws enacted by Congress.²³

When weighing the balancing of harms, Kavanaugh holds that the Government’s interest in enforcing the law outweighs illegal immigrants’ interest in avoiding being detained.²⁴ He adds that an illegal immigrant’s right to avoid being stopped by law enforcement is an interest in “evading the law,” which is not a “weighty” interest.²⁵ While Kavanaugh acknowledges that many illegal immigrants come to the United States seeking better lives, by staying in the country illegally, they are breaking the law and “jumping the line” of other immigrants who seek entry into the country through legal means.²⁶ He adds that these immigration stops are brief and presents no real burden to United States citizens or immigrants legally in the country.²⁷

Kavanaugh ends his concurrence by remarking that “[c]onsistency and neutrality are hallmarks of good judging,” which does not include policy decisions.²⁸ If an immigration practice is within its statutory authority and constitutional, it is not within a judge’s purview to expand or restrict the Government’s ability to enforce the policy.²⁹

B. Sotomayor’s Dissent

In Sotomayor’s dissent, she interweaves the stories of Latin Americans’ interactions with the estopped ICE practices to argue that allowing the practices to continue is both unsupported by Brignoni-Ponce and a violation of the Fourth Amendment.³⁰ Throughout her dissent, she gives examples demonstrating that people’s interactions with ICE during these stops were lengthy, invasive, and “[has] sparked ‘panic and fear’ across Los Angeles and its surrounding areas.”³¹ Such examples include Jason Galvida, who was working on his car when unmarked ICE agents grabbed him at gunpoint, then shoved him against a metal fence until he gave up his ID.³² Joge Viramontes, who was taken from work and detained by ICE on four separate occasions before being sent to a warehouse for questioning.³³ Three latino men, who were having coffee at a bus stop when ICE officers pulled up in unmarked cars and then proceeded to chase them.³⁴ They are all United States citizens.³⁵

Sotomayor’s dissent begins by arguing that the Government failed to demonstrate that it would succeed on the merits necessary to grant the stay.³⁶ The Government failed to establish that the Fourth Amendment allows them to engage in searches in which reasonable suspicion is based “on a set of facts that “describe[s] a very large category of ‘presumably innocent’ people.”³⁷ Sotomayor uses Brignoni-Ponce to highlight that the Government cannot use reasonable suspicion in a way that burdens citizens’ constitutional rights.³⁸ In Brignoni-Ponce, the Supreme Court rejected using race as a sole factor to determine reasonable suspicion because border patrol was allowed to burden citizens’ use of the highway.³⁹ Further, in Brignoni-Ponce, the Court said that reasonable suspicion constituted factors that were not general but specific, citing factors such as the characteristics of the vehicle and the behavior of the driver.⁴⁰ Sotomayor says that the factors described in Brignoni-Ponce do not match the factors in dispute due to their wide sweeping nature.⁴¹ She argues that for the Government to reach the appropriate level of reasonable suspicion, they need to use scenario specific facts, such as recent hiring decisions, rather than generalizations, such as the type of employment.⁴²

Sotomayor then argues that the Government failed to demonstrate that it would suffer irreparable harm.⁴³ Her main argument stems from the fact that the injunction does not have the chilling effect on law enforcement that the Government claims.⁴⁴ She reasons that the lower court’s injunction does not bar the Government from enforcing immigration laws; rather, it prevents the Government from conducting searches and seizures based on the four factors in dispute.⁴⁵ She then uses this lack of harm to move into the balancing of harms test, in which she argues that the opposing parties’ harm outweighs the Governments’ lack of harm. Sotomayor argues that, unlike Kavanaugh suggests, these are not brief and harmless stops, citing the examples of Galvida and Viramontes.⁴⁶ She argues these examples show that the stops can be lengthy, and they are repeated injuries, making them a significant harm to United States citizens.⁴⁷

Justice Sotomayor concludes her dissent by warning about the use of the emergency docket for the case.⁴⁸ She explains that sometimes the Emergency Docket is necessary, “[y]et, some situations simply cry out for an explanation, such as when the Government’s conduct flagrantly violates the law, or when lower courts and litigants need guidance about the issues on which they should focus.”⁴⁹ The lower courts will need to decide key issues in the case, such as class certification and motions for a preliminary injunction. By only having a dissent and a concurrence, lower courts will be left guessing on the complex nuances of the case.⁵⁰

III. Discussion

A. Issues With Kavanaugh’s Concurrence

This section analyzes Justice Kavanaugh’s reasoning in his Concurrence. It will argue that Kavanaugh mischaracterizes the majority opinion of Brignoni-Ponce, underestimates the balancing of harms test, and applies the test incorrectly.

1. Justice Kavanaugh Mischaracterizes the Brignoni-Ponce Decision

Justice Kavanaugh rests his concurrence on a mischaracterization of Brignoni-Ponce by cherry-picking one aspect of the decision taken out of context. The Brignoni-Ponce decision reaffirms the importance of the Fourth Amendment and preventing law enforcement from using arbitrary searches and seizures in a way that burdens United States citizens.⁵¹ Kavanaugh uses Brignoni-Ponce to conclude that law enforcement may not use race as the only factor as a basis for reasonable suspicion, but race can be used in determining reasonable suspicion if there are additional factors also being considered. However, Sotomayor correctly points out that the additional factors given in Bringnoni-Ponce contrast with the additional factors currently in dispute.⁵² The Court in Brignoni-Ponce listed acceptable factors that were specific to each scenario and would give law enforcement an indication of illegal immigration.⁵³ Such acceptable factors in Brignoni-Ponce included how the driver was acting, the size of the vehicle in question, and whether the vehicle contained multiple people to suggest smuggling.⁵⁴ Here, the factors at issue are the language one speaks, their accent, and the type of work they do, all of which are broad. These broad factors are similar to that of using one’s Mexican Ancestry, which was not enough to constitute reasonable suspicion under Brignoni-Ponce.⁵⁵ For example, the factors here are general and do not allow ICE agents to infer illegal immigration based on reasonable suspicion. Unlike Kavanaugh suggests, there are no sweeping outward characteristics that United States citizens have that illegal immigrants do not.⁵⁶ American citizens come from various ethnic backgrounds and classes, making it impossible to make a definitive checklist defining one’s status based on appearance. The four factors in dispute allow ICE to heavily police and harass United States citizens by targeting neighborhoods and workplaces commonly stereotyped with certain ethnicities.

2. Justice Kavanaugh Underestimates and Incorrectly Applies the Balancing of Harms Test

Justice Kavanaugh failed to properly consider the harm imposed upon United States citizens when conducting the balancing of harms test and underestimates the importance of the test when deciding to grant a stay that impedes citizens’ constitutional rights. The balancing of harms should be emphasized because the ICE practices in dispute weaken United States citizens’ Fourth Amendment rights by allowing ICE agents to profile marginalized citizens based on factors beyond their control. In conducting the balancing of harms test, Kavanaugh utilizes Brigoni-Ponce to emphasize the danger illegal immigration poses to society and the legitimate interest the government has in enforcing immigration laws.⁵⁷ However, in Brignoni-Ponce, the government lost the balancing test when the Court weighed the government’s interest in enforcing immigration laws against United States citizens’ interest in avoiding arbitrary seizures.⁵⁸ In Brignoni-Ponce, the Court concluded that the constitutional harms that citizens faced due to the governments immigration practices outweighed the harms the government would face by not being able to prevent illegal immigration as they saw fit.⁵⁹ Thus, when an enforcement practice threatens citizens’ constitutional rights, the balancing of harms needs to have significant weight in the legal analysis. Therefore, Kavanaugh should have concluded that the balancing of harms test needed to be the most important element when granting the stay because in the past, protecting citizens’ constitutional rights were valued more than law enforcments’ ability to enforce an act by Congress.

Even further, Kavanaugh incorrectly conducted the balancing of harms test when weighing the harms faced by each party, by only considering the injury to illegal immigrants, but giving no real analysis to the threats faced by United States citizens.⁶⁰ By not considering how granting the stay will affect American Citizens, Kavanaugh misses the real dangers of the four factors in dispute. No matter how strong the Government’s interest in enforcing immigration laws may be, that does not give them a pass to violate citizens’ constitutional rights.⁶¹ Kavanaugh cannot simply consider the stops brief. If he wants to deal in hypotheticals, he needs to ask whether a United States citizen facing these “brief” stops deserves to be continuously targeted by law enforcement based on factors beyond their control. Kavanaugh does a good job in his analysis when considering the threat that illegal immigration imposes upon the public, but to be “consistent and neutral” he needs to engage in hypotheticals that ask if these stops threaten the public’s Fourth Amendment rights.⁶² As Sotomayor says in her dissent, the harm is not to illegal immigrants breaking the law.⁶³ The harm is that the immigration practices in dispute are infringing upon citizens’ Fourth Amendment rights, which outweighs any restriction on enforcing immigration laws.⁶⁴

B. Sotomayor’s Judicial Approach is Favorable to Kavanaugh’s.

The opinions in Noem represent two drastically different ways in which the justices decide constitutional issues. Kavanaugh’s approach is based on hypotheticals, as he believes that it is not a judge’s job to make a policy argument regarding immigration enforcement.⁶⁵ Sotomayor’s approach grounds itself in real-life examples, telling stories of how ICE restricts the rights of the American people.⁶⁶ While Kavanaugh would argue that using these examples imposes a policy view on current immigration practices; this is far from the truth. Considering the real word impact of constitutional decisions does not overstep the bounds of the judiciary; it presents a full picture view of the policy the Government seeks to impose.

Sotomayor’s approach to determining whether a constitutional right is weakened is preferable because it relies on examples of the effectual truth of the “brief” stops rather than blindly taking the Government at its word.⁶⁷ In only dealing in hypotheticals, Kavanaugh misses the nuances in the Government’s disputed immigration practices and oversimplifies a complex issue. Sotomayor’s approach allows for the Court to consider the effects that the ICE practices have on American citizens, which allows the judiciary to better determine if there is an infringement on one’s Fourth Amendment rights.

Further, Justice Sotomayor does not make a policy argument or imply that there are better immigration practices. She uses the examples to explain the nuances of the cases in reasoning that the test offered by the Government does not reach the level of reasonable suspicion already determined by the Court. Her opinion does not attempt to chill the practices of the Government, as it only seeks to prevent practices that violate the Constitution. Her dissent even offers other constitutional factors that the Government may consider when enforcing immigration statutes.⁶⁸

C. Allowing the Stay Defines What it Means to “Look” American

Granting the stay is problematic because the decision imposes the idea that there is one way to look and act American – which is inherently white. While the factors do not specify what type of race is to be considered, it is clear that in the context of Los Angles, the Government is concerned with targeting people of “Mexican Ancestry,” or as Sotomayor put it, “[w]e 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.”⁶⁹ The factors imply that white characteristics are more American than characteristics stereotypically associated with Latinos. When Latinos are continuously being pulled over while their white counterparts are not, this abuse will destroy their self-worth and sense of belonging within their home. By legalizing racial profiling, the Supreme Court risks creating a deep distrust of the government in the Latino community.

D. The American Public Should Be Concerned About Noem’s Use of the Emergency Docket

The Noem decision, along with the increased use of the Emergency Docket, should concern the American public. The nature of the Emergency Docket leaves the American public with a broad rule but no substantive explanation by the majority.⁷⁰ Recent statistics suggest that the Court’s rate in accepting cases on the Emergency Docket is rising.⁷¹ While one would want the Court to step in and halt a harmful order by the lower court, it is important to remember that what is beneficial to one side can also be used against them later. If the Supreme Court can issue an order using the Emergency Docket to expand one’s rights, it can also use the Emergency Docket to restrict them. The Emergency Docket is not meant to be a final decision on the merits, but the road to the Supreme Court’s regular docket is a winding one that may never be reached. The Justices must realize that their decision on the Emergency Docket may be their only issue on the case. Thus, the Supreme Court needs to consider how using the Emergency Docket affects the lower courts, as it remains a high probability that it will be the lower courts who finalize a decision on the merits. Knowing that the Emergency Docket ruling may be the only time in which the Court hears the case, the Justices should only take on complex issues using the Emergency Docket if they are prepared to set the lower courts up for success by issuing a proper analysis. If the Court has any indication that a case will eventually be heard on the merits, they need to hear it on the regular docket instead of issuing a rushed and vague ruling on the Emergency Docket.

IV. Conclusion

In conclusion, Noem was a misuse of the Emergency Docket and weakens citizens’ Fourth Amendment rights. By allowing law enforcement to consider the factors of race, speaking Spanish or English with an accent, one’s location, and the type of work one does, the Supreme Court implies that there are certain factors that make one more or less of an American.⁷² In the future, the Court should be more selective about which cases it accepts using the Emergency Docket, as it owes the American public greater judicial transparency when it enables a discriminatory and oppressive policy.

Cover Photo by Jeff Siepman on Unsplash

Abriana Malfatti

References

1
Niccolò Machiavelli, Of Those Things for Which Men and Especially Princes are Praised or Blamed, in The Prince 61, 61 (The University of Chicago Press. 2nd eds. 1532).
2
Taraleigh Davis, What the Emergency Docket Actually Looks Like, SCOTUS Blog (Aug. 20, 2025), https://www.scotusblog.com/2025/08/what-the-supreme-court-emergency-docket-actually-looks-like/ [https://perma.cc/MVF5-V8MU].
3
Id. (When describing what “emergency” circumstances looked like in the past, Davis cites examples such as death penalty cases, refiling, and substantive issues. All cases brought on the Emergency Docket are looking for the Supreme Court to halt an order from a lower court.).
4
Joanna Insco, Inside the U.S. Supreme Court’s ‘shadow docket’, Al Jazeera (Aug. 28, 2025), https://www.aljazeera.com/features/longform/2025/8/28/a-finger-on-the-scale-inside-the-us-supreme-courts-shadow-docket [https://perma.cc/U5UL-BWUD]; see also Davis, supra note 2.
5
Davis, supra note 2.
6
Id.
7
Insco, supra note 4.
8
Id.
9
See generally Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 at *1 (U.S. Sep. 8th, 2025)(mem.); see also United States v. Brignoni-Ponce, 422 U.S. 873, 879 (1975)(The Supreme Court explains that one’s Fourth Amendment right is violated anytime their person or property is seized, and reasonable suspicion is meant to act as a safeguard that allows law enforcement officers to enforce the law without arbitrarily infringing upon citizens’ Fourth Amendment rights.).
10
Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 at *2 (U.S. Sep. 8th, 2025) (Kavanaugh, J., concurring).
11
Id. at *1.
12
See id. at *15 (Sotomayor, J., dissenting) (Justice Sotomayor explaining that the lower courts will only have the concurrence and the dissent of the case, but no majority opinion to determine what the key issues and deficiencies of the case were.).
13
Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 at *2, *3 (U.S. Sep. 8th, 2025) (Kavanaugh, J., concurring) (Kavanaugh also engages in an Article III standing anlysis using City of Los Angeles v. Lyons to argue that the Plaintiffs failed to demonstrate a repetable injury.).
14
Id.; see also id. at *5. (When Kavanaugh explains why he belives the balancing of harms has less weight, he references Justice Scalia’s concurring opinion in Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988), where Scalia says that the balncing test can become difficult and policy heavey because the Court is forced to take into account other third parties as well as the parties in dispute); see also id. at *14 n. 8. (Sotomayor, J., dissenting) (Sotomayor responds to Kavanaugh’s remarks on the balancing of harms test and points out that Scalia’s concurrence in Bendix was referring to the Dormant Commerce Clause, which is not applicable to the current case).
15
Id. at *4. (Kavanaugh, J., concurring).
16
Id.
17
United States v. Brignoni-Ponce, 422 U.S. 873, 887- 88 (1975).
18
Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 at *4 (U.S. Sep. 8th, 2025) (Kavanaugh, J., concurring)..; see also Brignoni-Ponce, 422 U.S. at 885-86.
19
Vasquez Perdomo, 2025 WL 2585637 at *4 (Kavanaugh, J., concurring).
20
Id. at *4.
21
Id.
22
Id. at *6; see also Brignoni-Ponce, 422 U.S. at 879-80.
23
Vasquez Perdomo, 2025 WL 2585637 at *6 (Kavanaugh, J., concurring).
24
Id.
25
Id.; id. at *5.
26
Id. at *6.
27
Id.
28
Id.
29
Id.
30
See generally id. at *7-15 (Sotomayor, J., dissenting).
31
Id. at *8.
32
Id. at *7
33
Id.
34
Id.
35
Id.
36
Id. at *11 (Sotoymayor also engages in an Article III standaning analysis responding to Kavanaugh, but in her analysis she concludes that the Plaintiffs sucsessfully demonstrate a repetable injury, arguing the facts of the case are unlike those in Lyons.).
37
Id. at *10 (quoting Reid v. Georgia, 488 U.S. 438, 441(1980)).
38
Id. at *11.
39
United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975) (The Supeme Court held that allowing border patrol to pull vehicles over when only considering their race would impede innocent citizens’ use of the highway near a large metropolitan area, when a majority of citizens who used the highway had no connection to illegal immigration).
40
Vasquez Perdomo, 2025 WL 2585637 at *11 (Sotomayor, J., dissenting).
41
Id.
42
Id.
43
Id. at *14
44
Id.
45
Id.
46
Id. at *7, *8.
47
Id. at *10, *13.
48
Id. at *15.
49
Id.
50
Id. at *14.
51
See generally United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
52
Id. at 883; see also Vasquez Perdomo, 2025 WL 2585637 at *11 (Sotomayor, J., dissenting).
53
Brignoni-Ponce, 422 U.S. at 886.
54
Id.
55
Id.
56
Id.
57
See id. at 887; see also Vasquez Perdomo, 2025 WL 2585637 at *6 (Kavanaugh, J., concurring).
58
Brignoni-Ponce, 422 U.S. at 885.
59
Id. (In Brignoni-Ponce, the Court held that allowing boarder patrol to soley use race as a factor for reasonable suspicion would undoley burden citizens’ use of the highway by subjecting them to arbitray stops that the Fourth Amendment protects them from. The Court reasoned that when weighing the harms between each party, weakening citizens’ Fourth Amendment rights in a way that impacted their daily lives outweighed the government’s interest in enforcing immigration laws.).
60
Id.
61
Id. at 878 (“[But] ‘no Act of Congress can authorize a violation of the Constitution.” quoting Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973)).
62
Vasquez Perdomo, 2025 WL 2585637 at *6 (Kavanaugh, J., concurring) (“Consistency and neutrality are hallmarks of good judging.”).
63
Id. at *14 (Sotomayor, J., dissenting).
64
Id. at *15 (Sotomayor calls out Kavanaugh for claiming that these stops are “brief” and pose no real danger to United States citizens by explaining that the reality of the “brief” stops demonstrate that there is a detrimental harm to United States citizens.).
65
Id.
66
Id. at *7-15.
67
Id. at *13 (Sotomayor does not claim that the Government’s version of the stops is untrue, rather she argues that the Government offers no evidence to show that they are considering examples other than the four factors in dispute when pulling people over.); id. at *2-6 (Kavanaugh, J., dissenting) (At no point in Kavanaugh’s concurrence does he give examples as to when these stops have actually been brief and harmless; rather, he bases his entire analysis on the idea that these stops are intended to be brief without referencing any evidence to demonstrate this point).
68
Id. at *11(Sotomayor, J., dissenting).
69
Id. at *7.
70
See Davis, supra note 2; see also Insco, supra note 4.
71
See Davis, supra note 2;see also Insco, supra note 4.
72
See generally Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637 at *1 (U.S. Sep. 8th, 2025)