Reasonable Suspect

In 2016, I published an article titled "Unsuspecting" in the Boston University Law Review that explored how a constitutionally "suspect" classification (like race) might lose that status. In its conclusion, I argued that suspect classification was doing more harm than good for the groups it purportedly protected. It had become only a tool to strike down legislation that sought to achieve racial equality.

I termed this dynamic "partial racial politics". Far from representing a near per se rule against de jure wielding of race, the actual doctrine is that "government can legislate on race freely, except when it expressly seeks to combat ongoing racial inequality." "Suspect classification doctrine is a vestigial artifact that only comes into play when racial minorities appear to be winning the political game." The government relying on race to cut off Black communities from White neighborhoods, or to decide who to execute? Supposed "strict scrutiny" falls silent. Too many minority students going to college, or voting, or entering into political office? Then strict scrutiny and a commitment to radical colorblindness suddenly comes roaring back. We might as well 

I wrote that article, again, in 2016, and while living in California. I presented it in Louisiana, where one bit of pushback was basically to argue that the risks of giving up suspect classification for race look different in California versus Louisiana. Just how confident was I, really, that suspect classification doctrine was no longer deterring any sort of racist legislation? Who knows what sorts of White supremacist malice would be unleashed if the "democratic" branches were unshackled once more?

Today, in a typical unreasoned shadow docket opinion, the Supreme Court (by a likely 6-3 vote) cleared the Trump administration to use racial profiling as part of its immigration enforcement raids. Racial background can validly be part of the basis for forming reasonable suspicion that a person is in the United States without legal documentation. The only Justice to write substantively in defense of this atrocity was Justice Kavanaugh, who suggested that undocumented immigrants have no legally protected interest in "evading questioning" and documented immigrants and U.S. citizens suffer no material injury because "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." What's a little race-based "stop and show me your papers" in the land of the free?

I look at today's decision, and I can't decide whether the conclusion to my 2016 paper was correct. On the one hand, the Court since then has grown only more aggressive in declaring an implacable commitment to colorblindness in the aforementioned circumstances of too many Black and brown people going to school or voting. The juxtaposition of those commitments, chest-thumpingly backed by an ironclad commitment to "colorblindness", against the willingness to sanction "color-consciousness" when it is deployed as a tool to terrorize immigrants (or those suspected of being immigrants, or those the government simply wants to terrorize under the guise of regulating immigration), seems to be a crystalline manifestation of the "partial racial politics" dynamic I identified in my article.

And yet, my Louisiana interlocutor's critique also feels more salient than ever before. In a 2025 where the government is not even nominally constrained from race-based policymaking, what horrors lie just beneath the surface, waiting to emerge? It somehow seems to simultaneously be true that the Supreme Court is doing nothing to stop (indeed, is the handmaiden of) the tidal wave of White supremacist fury crashing over the polity, and also that if we explicitly told the federal judiciary to butt out things could only get worse -- and worse in ways so terrifying I struggle to name them.

I don't have a resolution to this dilemma. We live in impossible times, where nakedly White Supremacist Senators align with a White Supremacist presidency and a White Supremacist Supreme Court to wage war on American constitutional liberty. Against this onslaught, what doctrine could ever hope to save us?