A “Colorblind” Constitution and Its Implications for Immigration Regulation

Dani Bowen

Edited by Jordan Perlman, Ananya Singh, Mac Kang, and Sahith Mocharla

Despite its intention, the Supreme Court’s September 8, 2025 decision on the Noem v. Vazquez-Perdomo lawsuit created a new set of challenges for the American public to face. Noem effectively allows Immigration and Customs Enforcement (ICE) agents to use and incorporate factors such as appearance, occupation, and language to contribute to arrests, functionally taking racial profiling from pariah to practice. While that, in principle, is problematic on its own, what is further concerning is Justice Brett Kavanaugh’s concurrence on the case. Justice Kavanaugh insists that using race as a factor in identifying possible illegal immigrants is simply part of a larger holistic approach of identification—a concept that directly contradicts the notion of a ‘colorblind’ constitution, a stance the court (and Justice Kavanaugh himself) embraced just a few years prior [1]. The hypocrisy itself is not only concerning but also further embraces the already violent action used by ICE agents.

The idea of a ‘colorblind’ constitution emerged in recent years due to the controversial 2023 decision in Students for Fair Admissions v. Harvard. The Supreme Court’s decision to overturn the practice of race-based admissions at universities marked the final nail in the coffin of a decades-long equal-rights battle concerning the constitutionality of affirmative action [2]. The Court’s 6-3 ruling claimed that race-based admissions decisions violate the Equal Protections Clause of the Fourteenth Amendment, which stipulates that no state shall “...deprive any person of life, liberty, or property, without due process of law; nor deny any person with its jurisdiction the equal protection of the laws” [3]. Chief Justice John Roberts, writing with the majority, insisted that because affirmative action “involves racial stereotyping,” the elimination of this racial discrimination is key to bypassing the issue [4]. In concurrence, Justice Clarence Thomas cited former Justice John Marshall Harlan: “Our Constitution is colorblind” [5]. While the concurrence is intended to dismiss racial discrimination, given America’s history with systematic racism, the claim doesn’t seem to match government action. Take immigration restriction as an example. Recent legislation not only creates a sense of disconnect between the set ‘colorblind’ precedent but also a sense of hypocrisy—both coming at the expense of minorities.

In July 2025, Maame Ewusi-Mensah Frimpong, a federal district court judge in Los Angeles, issued a temporary restraining order against ICE, finding that its officers were likely violating the Fourth Amendment by stopping and detaining individuals based on ethnicity, language, location, and type of employment [6]. However, on September 8th, the 6-3 Supreme Court’s decision on Noem v. Vazquez-Perdomo effectively overturned the court order by temporarily lifting the district courts’ restrictions on ICE activity [7]. 

Part of the controversy about this decision arose because it was issued on a “shadow docket,” also known as an “interim docket,” which is a process where the court hears emergency applications that need immediate action [8]. These cases are resolved through orders and the Court does not issue a signed majority opinion. Crucially, the lack of a majority opinion means that the exact reasoning behind the Court’s decision thus remains unclear. However, the core issue lies within Justice Kavanaugh’s concurrence on the decision due to its heavy implications of permissible racial profiling. “Those individuals [illegal immigrants] tend to gather in certain locations to seek work… work in certain kinds of jobs…and do not speak much English” wrote Kavanaugh, a statement that itself nears racial profiling [9]. Justice Kavanaugh makes clear that “Apparent ethnicity alone cannot furnish reasonable suspicion…however, it can be a ‘relevant factor’ when considered along with other salient factors” [10]. 

Racial profiling in immigration regulation is not an unfamiliar concept to the judiciary. Questions regarding the constitutionality of racial profiling date back at least to United States v. Brignoni-Ponce (1975), where the Supreme Court considered whether or not the Fourth Amendment prohibits Border Patrol agents from stopping and questioning border-crossing vehicle occupants solely on the basis of their appearance [11]. In a 9-0 decision, the Court held that the Fourth Amendment requires that there be reasonable suspicion to stop a vehicle—and that racial profiling alone is not enough to meet the threshold of “reasonable” [12]. But the Court still held that race was a factor, specifically holding that “apparent Mexican ancestry” could contribute to the reasonable suspicion of illegal immigration status near the border [13]. Chief Justice Warren E. Burger concurred with the judgement, stating that “the Fourth Amendment must take all the circumstances into account when weighing public interest against the rights of the individual” [14]. 

This precedent forms part of Justice Kavanaugh’s justification in Noem v. Vazquez-Perdomo. Kavanaugh states that “apparent ethnicity alone cannot furnish reasonable suspicion” when making a stop in relation to immigration [15]. However, he adds that “under this Court’s precedent, not to mention common sense, circumstances taken together can constitute at least reasonable suspicion” [16]. Essentially, Kavanaugh argues that immigration enforcement follows a “holistic” process, where race is an important but not solely considered factor. In this way, Kavanaugh’s reasoning in Noem appears to be consistent with the Burger Court’s ruling in Bignoni-Ponce and constitutional limits. 

However, Kavanaugh’s insistence on race as a permissible factor negates the concept of the “colorblind” Constitution he himself purported. As George Mason University Professor Ilya Somin points out:

In SFFA v. Harvard, the Supreme Court’s 2022 ruling against racial preference in university admissions, Chief Justice John Roberts wrote that ‘eliminating racial discrimination means eliminating all of it.’ If this is a sound constitutional principle – and it is – there cannot be an ad hoc exception for immigration enforcement [17]. 

Kavanaugh’s concurrences in SFFA and Noem demonstrate a flaw that transcends the issue of immigration. Although Noem concerned the Fourth Amendment and SFFA v. Harvard concerned the Fourteenth, the underlying issue of the Court’s inconsistent treatment of race remains. If all forms of racial profiling should be eliminated, why is immigration regulation an exclusive case? If the Supreme Court wants to adopt a “color-blind” application of admissions in favor of a “holistic” approach to accept potential candidates, how should we understand the role of race as a factor in immigration enforcement? 

An inconsistency in racial analysis of the constitution not only signals a weakness in constitutional legitimacy but opens the door for unequal racial treatment. The United States already has a long history of racial discrimination and this recent hypocrisy leaves no leeway in the search for progress. The effects of Noem’s faulty reasoning have already been seen. In recent months, it’s been reported that multiple American citizens have been falsely arrested and detained [18]. In her dissent of the case, Justice Sotomayor wrote that “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” [19]. In a country hailed for being a “melting pot” of culture and diversity, it’s imperative that the Supreme Court addresses this racial discrepancy in order to truly guarantee “liberty and justice for all”.

---

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. ___ (2023).

[2] See 1

[3] The constitution of the United States: A transcription, National Archives and Records Administration, https://www.archives.gov/founding-docs/constitution-transcript (last visited Dec 3, 2025).

[4] see [1] 

[5] see [1]

[6] Charlie Savage, The Supreme Court Decision on ICE and Racial Profiling, Explained, The New York Times (Sept. 8, 2025), https://www.nytimes.com/2025/09/08/us/politics/supreme-court-immigration-racial-profiling.html.

[7] Jennifer Chacón, Whose Common Sense? Some Reflections on Noem v. Vazquez Perdomo, Stanford Law School (Sept. 24, 2025), https://law.stanford.edu/2025/09/24/whose-common-sense-some-reflections-on-noem-v-vazquez-perdomo/.

[8] Alicia Bannon & Harry Isaiah Black, The Supreme Court “Shadow Docket,” Explained | Brennan Center for Justice, Brennan Center for Justice (Dec. 12, 2025), https://www.brennancenter.org/our-work/research-reports/supreme-court-shadow-docket.

[9] Noem v. Vasquez Perdomo, No. 25A169, 606 U.S. ___, ___ (2025) 

[10] see [9]

[11] United States v. Brignoni-Ponce, 422 U.S. 873 (1975)

[12] See [11]

[13] see [11]

[14] see [11]

[15] see [9]

[16] see [9]

[17] Ilya Somin, Supreme Court Issues Dubious “Shadow Docket” Ruling Staying Injunction Against Racial Profiling in Immigration Enforcement, Reason.com (Sept. 8, 2025), https://reason.com/volokh/2025/09/08/supreme-court-issues-dubious-shadow-docket-ruling-staying-injunction-against-racial-profiling-in-immigration-enforcement/.

[18] Nick Karmia Uribe Maria Ramirez, Kristi Noem Says No Americans Have Been Detained in ICE Sweeps. That’s False., Poynter (Nov. 3, 2025), https://www.poynter.org/fact-checking/2025/has-ice-arrested-american-citizens/.

[19] Reynolds Holding, No Time for Respect, Better Judgment (Sept. 13, 2025), https://renholding.substack.com/p/no-time-for-respect.