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Monday
Lost in all of last week’s news was the Supreme Court approving racial profiling in armed ICE raids in the Los Angeles area. Apparently the six rightwing justices approve detaining people based solely on the fact that they speak Spanish or are day laborers waiting outside Home Depot.
The fourth amendment of the Constitution, in case you need reminding, protects individuals “from unreasonable searches and seizures by the government.”
For a while now the Supreme Court has been using the so-called Shadow Docket to overturn intricately reasoned decisions of lower courts. It doesn’t have to explain, just declare, “Because I said so.” In this instance, however, Justice Kavanagh felt so sure of his position that he provided an explanation, which revealed his inability to see the world from anything other than his position of white, upper-class privilege.
Essentially he claimed that those who are innocent have nothing to fear 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.” As he sees it, even if some innocent people are abused in the process, it’s worth it because most Latinos are undocumented people seeking to evade the police. As an opinion writer for Yahoo News observed, “Kavanaugh glosses over the interests of millions of Latino U.S. citizens and legal residents who do not want to risk getting gang-tackled on their way to work.”
The ruling brings to mind Bertolt Brecht’s play The Exception and the Rule, about a merchant who must cross a desert to make his fortune. In the process, we watch the mixed relationship he has with his guide, which culminates in his killing the man after mistaking a helpful gesture as a hostile move. Although the porter has offered him some of their dwindling water supplies, he thinks he is being attacked and shoots.
There is a trial and, although it is agreed that the porter was not in fact attacking the merchant, the merchant is still found to be innocent. The judge rules, “In the circumstances as established, it was inevitable that he should believe himself threatened.”
Think about that for a moment. The circumstances in this society are such that lower class people are assumed to be hostile. The rule is that they are a threat, the exception is that they are not. Therefore, if mistakes are made, they can be excused.
Isn’t this our situation at present? It is assumed by ICE that anyone who has brown skin and speaks Spanish is here illegally. If they can produce papers, then they are the exception.
And because they are the exception, if ICE agents get it wrong and rough up or imprison a citizen or someone with papers, they are not accountable. After all, “in the circumstances as established, it was inevitable that they would make a mistake.”
When Kavanah says that all they must do is “mak[e] clear to the immigration officials,” I think of the Manuel Muñoz short story I recently wrote about. When an old man is asked why he used to flee the authorities even though he had papers, he laughs:
You think anybody ever believed me? You think they believe you just because you say something? You think all you have to do is say you have papers? Here, my father said, thrusting his hands out as if in offering. Here, my papers.
Brecht’s play, which was intended to awaken workers to society’s double standard, ends with the actors telling their audience to resist normalizing the situation:
There ends
The story of a journey
You have heard and you have seen.
You saw the normal, that which happens every day.
But please, we say to you now:
Even when ordinary, find it strange
Even when familiar, find it ineplicable
Even when quite normal, it must astound you
Even when the rule, recognize it as an abuse
And wherever you have recognized abuse
Put it right!
One person intent on calling out the Kavanagh’s attempt at normalization is Supreme Court Sonia Sotomayor, who protested is the most powerful way available to her,
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. Rather than stand idly by while our constitutional freedoms are lost, I dissent.”
Not that the rightwing justices care.
