Weekend Law: Racial Profiling, SCOTUS Changes & DC Grand Juries Resist

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0:43We will not stand for this type of discrimination and racism. Los Angeles Mayor Karen Bass slammed the Supreme Court's emergency ruling this week that allows ICE agents to stop and detain people based on their race, language, job, or location, factors that a federal judge had found unconstitutional. The ruling was 6-3 with the conservative justices in the majority and the liberals in dissent. Immigration advocates like Columbia Law School professor Elora Mukherjee say it means the court has essentially legalized racial profiling. What this means in practice is that immigration officers, as well as other law enforcement officers, now practically have an invitation to engage in racial profiling when they are carrying out stops.

1:35The effect of this decision is that America has become a show-me-your-papers country for the overwhelming majority of people of color. The ruling was a one-paragraph order with no explanation at all from the majority. My guest is a leading authority on racial profiling, Professor David Harris of the University of Pittsburgh Law School. David, I want to start with the basics. When can law enforcement stop someone under the Fourth Amendment? People can be stopped by the police under the Fourth Amendment when there is reasonable suspicion that a crime is afoot and they may be involved in the crime.

2:16And reasonable suspicion is less than probable cause, but it is based on facts and reasons. Now, when we transition from detecting crime to looking at immigration issues, the standard is still reasonable suspicion. There must be facts and there must be proper inferences. But what we're looking for, of course, is whether a person is in immigration status or not. So with this ruling, the Supreme Court put on hold a federal judge's order. Tell us about the order it stayed. The lower court in Los Angeles had decided that ICE and its law enforcement allies were using factors to stop people that inevitably led to unconstitutional stops.

3:04And the lower court had said, you may not use either alone or in combination the factors of somebody's Hispanic or Latino appearance, speaking Spanish or having an accent, appearance that you are engaged in low-wage work, and being at a location associated with day labor. And the court said, you can't do this anymore because I can see from the evidence that I took that this is being done in ways that violate the Constitution. And what the Supreme Court did on its emergency docket was to say, no, no, this order will not go into effect. We're holding it for now until we have more time to look at it.

3:52And Justice Kavanaugh wrote an opinion that is not for the court saying that he believed that the administration who want to be able to use those factors will succeed when they get to a full hearing, that they'll win. And therefore, ICE and the police allies can go back to using those factors when they stop people to see if they are in violation of the immigration laws. Are they basically saying, well, racial profiling is okay then? What they're doing is they're looking back, and this is the best we can tell. We're not really sure because, like you said, there is no opinion. So we're having to speculate to some extent.

4:34But what they seem to be saying, based on the fact that they stopped the lower court's ruling, which would have put a stop to all of this, and Justice Kavanaugh's opinion for himself, is it's okay to use some combination of those four factors, ethnic appearance, Spanish-speaking or accent, appearance of being a low-wage worker in these particular locations. Now, Kavanaugh was clear on saying you can't just say, well, this person looks Mexican, and that's enough. But it's a very slippery slope down to exactly that point. Our experience with this sort of thing goes back many years now. I've been studying racial and ethnic profiling for well over 30 years, and we've seen it.

5:18We've seen exactly this kind of thing before. We saw it when Arizona enacted the show your paper statute back in about 2008 or so. And Sheriff Joe Arpaio went to town on that. And it was just picking up people because of how they looked and their Spanish speaking or their accent. And that is racial profiling by any other name. I mean, we don't want to call it that. Fine. But that's what happened. Law enforcement begins to lean on the most obvious factors. And that's what the judge saw in Los Angeles. And that's why the judge stopped them from doing this in the first place. So all of this will move immigration enforcement efforts right up to that very same line.

6:01And we will have people getting picked up just for how they look and whether they are Spanish speaking. It's going to happen as night follows day. And the only way we'll find out what factors the immigration officers are relying on is if someone who's detained brings a lawsuit, right? Exactly. And there will be some cases brought, chances are, because one of the other effects of this is going to be that lots of people will be interrogated and even picked up and arrested who are in good order as far as immigration law. That's another thing that we see whenever there is widespread sort of dragnet pulling people in on these very basic factors.

6:44They end up making mistakes when they're allowed to lean on those kind of factors. And we will get a few people who end up in custody, maybe for a few days, maybe for a long time, maybe even getting deported before it can be reversed and they can bring a case. Justice Kavanaugh says, in his opinion, well, look, if everything's in order, they'll just let you go. And he says it's an important problem in Los Angeles because there's an estimate of, say, 2 million people who are undocumented in Los Angeles. But what he doesn't say is that there are millions more who share those characteristics, who have ethnic features of people from Latin America, who speak Spanish, who have a Spanish accent.

7:27And they're going to be swept up in this, too. And that's where the cases will probably come from. Justice Kavanaugh said, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief. And those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States. He doesn't mention that one of the plaintiffs here, Jason Brian Gavidia, who's an American citizen, was stopped by immigration agents, shoved into a metal fence, and his arm was twisted behind his back.

8:05All the while that he's shouting, I'm American, I was born in East L.A. And there's video of it that anyone can see on the Internet. Look how you got my hands twisted. I'm American, bro. What happened? I don't know, dog. They're literally based off of skin color. He's not laying for I can show you. I got a new ID. Gavidia says that he was frightened and the agents took his phone and ID. He was released, but he never did get his ID card back. Yeah, this is going to happen. This is going to happen more now that everybody can see, including the ICE agents and the police who are helping them, that they've been given the green light.

8:43We will have that happen. It's a certainty. and for Justice Kavanaugh to say, hey, it's all fine as long as you carry your papers with it. Well, I mean, do you carry your birth certificate to work? I mean, does everybody do that? And even if you do, you might not get those things back. You can be in big trouble even if you have crossed every T and dotted every I and you were born here. So I just really took offense at that. I think it's somebody who never has to confront these problems, making a pronouncement he knows nothing about. So Justice Sotomayor wrote a stinging dissent, quote, 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.

9:27She quoted a 1975 case that said it was unconstitutional for the Border Patrol to stop a car and question its occupants when the only ground for suspicion was that they appeared to be of Mexican ancestry. Does this shadow docket decision contradict that decision, or is it broader? It's a little broader, but again, we're left to speculate because it's on the shadow docket. But that's a live question for sure. There is an older case that says things like that. You have to go beyond just ethnic appearance. But certainly, it does also say that same case says ethnic appearance counts. And my experience and the experience of those who study this, as I have, is that when that's a factor that is relied on, even with others in the mix, law enforcement leans heavily on it, discounts the other factors that may go in the other direction, and you get mistakes.

10:26Immigration advocates fear that this decision will open the door to racial profiling across the United States. Do you think that now that the Supreme Court has found this is okay in Los Angeles, that it will also be okay in Chicago or New York or other cities? Well, again, we're left without full knowledge of what the Supreme Court has done or will do. We don't know how far they will go or what they will say in the end. But people who know just the headline, if they're in the enforcement business, that's how they're going to take it. Supreme Court says it's okay to use racial or ethnic appearance.

11:09They're not even going to make the distinction that Justice Kavanaugh does, which is that wouldn't be enough by itself. They're going to take it as racial profiling is okay. And if it's okay in LA, why wouldn't it be okay in Chicago or New York? And when they say flood the zone, they mean lots and lots of people from our force will be out there doing this. And long range, if what you care about is public safety, you are doing the wrong thing because public safety depends on public support. You need the public to give the police information about what's what in the neighborhood. If this is happening, not just to people who might be deported legitimately, let's say, but to people born here because they look a certain way, that is going to alienate people, not just from ICE, but from police generally.

12:00And it makes them less likely to cooperate with any policing of any type. So this immigration policy of flooding the zone with forces, with these low accuracy factors, this is going to make it more dangerous for us just on the level of regular crime. Thanks so much, David. That's Professor David Harris of the University of Pittsburgh Law School. Coming up next, how the Roberts Court has changed the law. I'm June Gross, and you're listening to Bloomberg. As markets move and headlines break, what matters most is context. A Bloomberg subscription gives you unmatched reporting, sharp analysis, and powerful tools that help you connect the dots.

12:43Visit Bloomberg.com slash podcast offer to learn more. Chief Justice John Roberts famously compared judges to umpires during his confirmation hearings in 2010. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. But many legal experts say the Roberts Court has changed the rules, playing anything but the limited role of an umpire. During the 20 years since he's been chief, the court, with its conservative majority and now conservative supermajority, has dramatically changed the law on abortion, gun rights, race, religion, federal agencies, and presidential power, overturning precedents that got in the way, and moving the court further and further to the right.

13:42My guest is constitutional law professor Eric Siegel of Georgia State University. Eric, what do you think of Roberts' comparison of justices to umpires? Well, Justice Kavanaugh repeated that years later as well, despite the mockery of virtually all court watchers, pundits across the political spectrum on that statement by Justice Roberts. They're not umpires. They've never been umpires. In 1857, Congress wanted to end slavery in the territories. Congress had the power to do that under the Constitution. The court made up a new rule and said no. And from 1900 to 1936, the court struck down hundreds of laws about minimum wages, overtime rules, labor conditions.

14:23The Constitution allows Congress to do that. The court wasn't playing like an umpire. And I think conservatives would fairly say that cases like Roe versus Wade were not the justices acting like umpires. So no, it was a silly statement when he made it. It was even sillier for Justice Kavanaugh to repeat it during his confirmation hearing. The Constitution is a very vague document when it comes to litigation. There are some specific things. The president has to be 35, two senators from every state. Inauguration day is January 20th. But we don't litigate those clauses. We litigate due process, equal protection, cruel and usual punishment, unreasonable searches and seizures, and so on.

14:59It'd be like saying to an umpire, you get to decide what's fair in a baseball game. That's not what umpires do in baseball. They have some discretion, of course. We've told the Supreme Court, in effect, make the constitutional rules for America, and that has nothing to do with sports. There are a lot of areas where the Roberts court has changed or reshaped the law. Some changes seem dramatic, like abortion and gun rights. Other changes, like the laws around race, seem slower in coming. Tell us about Roberts' role there. Other than the presidential immunity decision in Trump versus United States, One of the worst opinions in Supreme Court history, in my opinion, and many others.

15:40Leaving aside that opinion written by Justice Roberts, I think he's done the most damage to America when it comes to race. And it started in his very first term when the cities of Seattle and Louisville, let's take Louisville for a minute. You know, Louisville had segregation under the law for many, many years. Those schools were still segregated. So at the very local level, students and teachers and parents and school board members and voters got together and came up with a very limited plan to make sure that the public schools in Louisville had some minimal degree of desegregation so that white kids and black kids in Louisville could go to school together.

16:19And no judge ordered this. This was voluntary. And in his very first term, the Roberts court struck that down. And that's when Justice Roberts said the famous line, the way to stop discrimination based on race is to stop discriminating based on race. In the context of Louisville, Kentucky, which discriminated on the basis of race legally for a century, that's, in my opinion, a very bizarre statement. And even Justice Kennedy, who was the fifth vote in that case, disagreed with that statement. So it started there. Everybody knows that Justice Roberts does not like voting rights. As a young attorney in the Reagan administration in 1981, he wrote some scathing things.

16:55things about the Voting Rights Act. And then, of course, in Shelby County v. Holder, he was able to concoct a new rule that Congress can't treat different states differently without a strong reason and struck down a law that was passed by a unanimous Senate and signed by a Republican president. That law was struck down. And then the very next day, Texas and North Carolina passed voting rules they could not have passed prior to that law being struck down. They've also interpreted the Voting Rights Act very narrowly, and I think this next year even more narrowly again. And then, of course, there's the affirmative action case, which overturned 50 years of precedent and said colleges and universities are not allowed to use race at all in their admissions process.

17:37It's as if Justice Roberts thinks race was never a problem in this country. It's as if he thinks we can just snap our fingers and all of our racial divisions will go away. And Justice Roberts has really turned a cold shoulder to dealing with those problems. There was a time when Roberts seemed, I guess you could describe it as more middle of the road. He did write the opinion saving Obamacare. And in the Dobbs decision, he wouldn't have gone so far as to actually overturn Roe. So is it Roberts that's moving the court to the right? Or is it the three Trump appointees that gave the court a conservative supermajority?

18:17There's no question that those three Trump appointees have played and will continue to play a significant role in moving the court far to the right. But it's also a little bit of a myth that Justice Roberts was ever anything less than an extremely conservative justice. Yes, he did save part of Obamacare. Remember, he did not save the Medicaid part of Obamacare, which was actually a key part of that law. And by striking down that part of the law, the court did serious damage to Obamacare in complicated ways that health policy experts could explain. Before 2012, in the seven years preceding that case, he had never joined with the liberals in a 5-4 opinion.

19:00Since then, he's joined with liberals a few times, and you're right about Dobbs, but there is no question that he would have eventually voted to overturn Roe. Justice Roberts' formula has been consistently in voting rights, race cases, abortion cases, and separation of powers cases, punch holes in the precedent, punch holes in the precedent, then reverse the precedent. There is no doubt he would have eventually voted to overturn Roe v. Wade. So I think even a 5-4 court run by Justice Roberts would be an extremely conservative court. And with the exception of Justice Kennedy's votes on affirmative action, gay rights, was an extremely conservative court for most of Justice Roberts' court.

19:40There seems to be a lot of movement lately in the area of federal agency authority and likely more changes to come. Tell us what's been happening there. Most of the laws that govern American private conduct and companies, environmental regulations, food and drug regulations, they all come from the executive branch. Congress passes a very broad law saying pollution is bad. President, go fix it. Congress passes a law saying we want to have state food. Executive branch, you go ahead and fix that. Well, Donald Trump's a businessman who doesn't like regulations. He appointed three justices who don't like regulations, and they are doing everything they can to make it harder for the executive branch to pass regulations such as environmental and food and drug laws.

20:28And it's very hard for Congress to do it because they don't want to politically take the hit. So it's not a surprise that this Supreme Court is trying to really go back to a 1930s pre-New deal understanding of federal power over the economy, because these are people who believe, you know, in a totally free marketplace, not burdened by government regulation. And of course, not just in the court, but this is filtering down all through the Trump administration. But the justices share that political goal. And that's what we're seeing. Roberts is the chief justice, but his vote is just one of nine votes.

21:07So how much power does he wield? So a very famous lower court judge, maybe the most famous lower court judge of our lifetimes, Judge Richard Posner, used to say that the chief justice really has no power except, you know, to decide who writes the opinion when he's in the majority and maybe some administrative rules. So I have a theory about Chief Justice Roberts' vote in the Obamacare case, which is that from 2005, when Justice Roberts became the chief, to 2012, he had no power at all because Justice Kennedy held all the power. In that first term, Justice Kennedy was in the majority of 100 % of five forces.

21:47And for the next seven years, the court went the way Justice Kennedy went. Supreme Court justices are human beings. They're people like us. Now, they have better jobs than most of us, but they are like us. And Chief Justice Roberts, I think, always wanted to be on the Supreme Court and always wanted to be chief justice. I'm not saying he thought he would ever get that, but you can't go any higher in the law than he went. And he had no power because Justice Kennedy had all the power. I think psychologically that was a factor in his decision in 2012 in the Obamacare case. So the story after 2012 became, oh, Justice Roberts is a swing vote also.

22:25Wasn't really true. Today, he has very, very little power. He has to get either Justice Barrett or Justice Kavanaugh or Justice Gorsuch to agree with him when he doesn't want to rule in a conservative fashion because he's never getting Fidelito and Thomas to rule with him. So I would say he has no more power than Gorsuch, Kavanaugh, and Barrett. And I'm not even sure he's more power than Justice Barrett, with the exception, and it's a big deal, when he's in the majority, he gets to assign the opinion. But other than that, His vote counts the same. And frankly, I think he was a little bit scarred in the first seven years on the bench when his vote counted much less than Justice Kennedy's vote.

23:07So how do you think he ranks as far as chief justices who've led the court? My guess is he's going to go down as one of the worst chief justices. And I say this for the following reason. History has shown that when the Supreme Court lurches far to the left or to the right, eventually the political system goes the other direction. So when the Warren court went too far to the left, and I'm a liberal progressive who will say, I think the Warren court went too far to the left, then Richard Nixon runs on a law and order campaign, Ronald Reagan runs on Roe versus Wade, you know, and Republicans hold power for most of that time period in the political sphere.

23:48This Supreme Court, I think, and I think political scientists think, is far to the right of the median Republican vote, leaving aside the median Democrat voter. So my guess is, eventually, there will be a cycle where the political system lurches in the other direction. And then we will see just how conservative his court has been. It has been very, very conservative. And there are even conservatives today, scholars, even from fellow society folks, who are saying things like, this disrespect for precedent is not a conservative value, right? Conservatives like the status quo. Progressives want to change the status quo.

24:28The Roberts Court has been reversing important precedents at, I think, a rate that's probably unheard of in American history. I'm not saying they're reversing more cases. The importance is of the reversing important cases. Guns, abortion, affirmative action, separation of church and state, separation of powers, and even federalism, which traditionally has been a very conservative value. Those areas of the law have been dramatically reshaped in two short decades. There's no definition of conservative that I know that suggests that judges should be the ones doing that. And looking at the term coming up, there may be more changes ahead.

25:09Thanks so much, Eric. That's Professor Eric Siegel of the Georgia State University. Coming up next on the Bloomberg Law Show, they say that prosecutors can get a grand jury to indict a ham sandwich. Well, it seems that doesn't apply to the prosecutors in the D.C. U.S. Attorney's Office. I'm June Grosso, and you're listening to Bloomberg. The Bloomberg This Weekend Podcast. News, politics, and the lighter side of Bloomberg. The cutthroat competition to get a gig on a cruise ship. They get to enjoy all the amenities, and a one-week contract can pay like thousands of dollars for them. I know this is a good gig.

25:46Yes. Like, you're booked through six months, and you could pay your bills for like a year and a half. And you may get norovirus. Yeah, keep going. You're going to get... The Bloomberg This Weekend Podcast. Subscribe today on Apple, Spotify, or wherever you listen. You've probably heard the famous saying that prosecutors have so much influence on grand juries, they could get them to indict a ham sandwich. Well, maybe not if that prosecutor is in the D.C. U.S. Attorney's Office trying to get a grand jury to indict someone overthrowing a salami sandwich at a federal agent. D.C. U.S. Attorney Jeanine Pirro bragged about charging the man who threw the sandwich with a felony of assaulting a federal law enforcement officer.

26:33And then he took a Subway sandwich about this big and took it and threw it at the officer. He thought it was funny. Well, he doesn't think it's funny today because we charged him with a felony assault on a police officer and we're going to back the police to the hilt so there stick your subway sandwich somewhere else but the grand jury apparently didn't get pierrot's joke and the u.s attorney's office didn't get their felony indictment against sean dunn known now as the sandwich guy prosecutors have now charged him with a misdemeanor of simple assault which doesn't require a grand jury's input.

27:14It's extraordinarily rare for a grand jury to refuse to return an indictment, but it's happened with D.C. grand juries at least seven times since President Trump ordered a surge in patrols by federal agents and troops in the nation's capital. Joining me is former federal prosecutor Robert Mintz, a partner, McCarter in English. Bob, people know the basics of the workings of a jury, even if they haven't been on one, because it's depicted so much in the movies and on TV, but less so about the workings of a grand jury. So tell us about the grand jury. A grand jury proceeding is necessary whenever prosecutors are seeking to bring a felony charge.

27:57Under the Fifth Amendment, there is a requirement for capital or otherwise infamous crime to go before a grand jury, which in the federal system is between 16 and 22 citizens in order to establish probable cause to bring the charge. What that means is prosecutors have to essentially present their case to the grand jurors in order to bring the indictment. And what goes on in the grand jury is entirely controlled by prosecutors. It's a presentation in which only the prosecutor is present. The defense lawyer is not allowed inside the grand jury. The defendant does not get a right to testify before the grand jury.