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Wednesday
I recently invoked Brecht in a post about how the Supreme Court’s rightwing members are green lighting racial profiling, but I could just as well have cited Joseph Heller’s Catch-22. That’s because, even as it gives ICE the freedom to “seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job” (to quote from Justice Sonia Sotomayor’s stinging dissent), it also has stripped them of legal recourse if they are so seized.
Here’s Yossarian encountering Catch-22:
There was only one catch and that was Catch-22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
A writer for The Ink lays out the situation. First there is what has become known as “the Kavanaugh Stop” given that justice’s defense of racial profiling:
[A]s 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.
We’re seeing increasing instances where this is not in fact the case—the Ink article observes that, “from the beginning of Stephen Miller’s mass deportation effort, U.S. citizens and noncitizen residents have been repeatedly ensnared in raids”—but for to these victims Kavanaugh offers further reassurance:
To the extent that excessive force has been used, the Fourth Amendment prohibits such action, and remedies should be available in federal court.
Here, however, the Supreme Court’s Catch-22 clicks into effect. Citing Damon Root at Reason, the article observes that “Kavanaugh here is forgetting about — or ignoring — his own earlier ruling that made it more or less impossible for somebody abused by federal agents to get such remedies.” Thanks to the Court’s 2022 majority opinion in Egbert v. Boule, it is “practically impossible to sue a federal officer over an alleged constitutional rights violation.”
In other words, Kavanaugh is contending that, while the Constitution protects people from excessive force, they can’t do anything against someone who uses excessive force.
[Respectful whistle]
Further thought: I’m trying to figure out if the following SCOTUS rulings are a Catch-22: law enforcement officers are allowed to take race into account when they arrest people, but colleges are not allowed to take race into account in the admissions process. Color blind for thee but not for me.
Perhaps this isn’t an instance of Catch-22, which is a hellish circle, but rather a garden-level double standard. Same result, however.
