Court ruling that lets ICE racially profile harks back to Dred Scott | Opinion
In 1833, a man named Dred Scott crossed a border.
Scott didn’t traverse nations. Just a work trip, of sorts, from Missouri to Illinois. But as a slave in a pre-abolition (and rapidly fracturing) United States, Scott might as well have been hurled between dimensions.
Owned by a military surgeon named John Emerson, Scott served his master wherever Emerson was stationed — from the Jefferson Barracks near St. Louis, where slavery was a way of life, to Fort Armstrong, Illinois, where Scott’s continued bondage was supposedly outlawed.
Scott eventually contended that his years residing on free soil in free states and territories made him a free man. It was a nice sentiment, but he knew that slaveowning soldiers habitually ignored the law of the land.
After suing for his liberty, Scott lost one of the most infamous Supreme Court decisions in American history, 1857’s Dred Scott v. Sandford. Writing the Court’s majority opinion, Chief Justice Roger Taney reasoned that “the enslaved African race were not intended to be included” by the Declaration of Independence’s authors, and their most resounding claim that “all men were created equal” was never meant for all men.
Scott’s African heritage, an immutable, God-given attribute, now formally excluded him, and any other Black person, from accessing the inalienable rights of others. The Dred Scott Decision was so controversial that historians consider it a direct precursor to the Civil War.
One of those rights specified by the Constitution but denied to men like Scott until the eventual emancipation from slavery is the right to be protected from unreasonable searches and seizures by government officials. Like, for example, a rapacious federal agency patrolling a Mexican neighborhood still needs “reasonable suspicion” of a crime to detain someone. But on Monday, the court decided, once again, that such protections are not quite as true for all men.
In a 6-3 vote, the court authorized ICE, the immigration enforcement agency, to continue racially profiling Latinos while using tactics encouraged by the White House to increase deportations. By allowing immigration agents to use “apparent race and ethnicity” in concert with what the court called “relevant factors” when deciding who to detain, SCOTUS diluted the standard of “reasonable suspicion” of a crime to include the color of your skin, and, almost as troublingly, gave ICE agents the right to decide if your skin tone makes you a suspect.
ICE has argued that agents aren’t using race and ethnicity alone when conducting raids, and Justice Brett Kavanaugh, who wrote in support of the court’s decision, reiterated that “apparent ethnicity alone cannot furnish reasonable suspicion.” A nice sentiment, but again, completely divorced from the terror ICE inflicted on people rounded up like cattle from car washes and bus stops.
The court’s decision overturned a district court injunction that prohibited ICE from discriminating against Latinos, citing the arrests of several U.S. citizens and lawful residents, including an 11-year-old boy. The initial injunction’s effect was immediate, and its initial decision proven correct: once agents needed a higher evidentiary standard than “you look too brown to belong here,” arrests immediately plummeted by 66%. The case will continue to work its way through the courts, but in the meantime, the administration’s power was restored.
You might have heard stories of ICE agents brutalizing pregnant women, preteens and politicians across the country and surmise that the DHS employs a few bad apples. Maybe you heard about MMA fighter Aaron Ely, who said at an Arlington ICE recruitment event that he would punish Indians “bragging about taking our tech jobs” by becoming one of the officers willing to “arrest you, slam your face on the pavement and send you home.” You might suspect that the job itself attracts people who aren’t concerned with methodically balancing the scales of justice.
But, even if you graciously assume that the masked agents demanding bus riders show their birth certificate while hiding their badges were committed to a fair and transparent process, there’s another problem: What does looking Latino mean, anyway?
As a baseball fan, I know this well. Adolis García, the Cuban-born slugger who carried the Texas Rangers to their first title, is as Black as me. On the other end of the spectrum: the Los Angeles Dodgers a veteran utilityman whiter than most people who think they have nothing to worry about. His name? Enrique “Kiké” Hernández, from San Juan, Puerto Rico, and he’s sick of ICE’s nonsense, too. “I cannot stand to see our community being violated, profiled, abused and ripped apart,” Hernández said of the raids destroying his adopted city.
Most Kiké lookalikes are probably fine. I’m not reaching for my papers, either. I doubt anybody would think I present as an undocumented day laborer, or someone likely to be confused as one. My weekday wardrobe of raw denim, Nike Dunks, and color-coordinated eyewear is more “downwardly mobile creative professional” than “strawberry picker.”
Also, ancestors on both sides of my family came to the United States when crossing our border without papers was completely lawful, especially because they arrived at our ports while chained to a boat. Slaves don’t need work visas. As a result: I’m here, writing your favorite column.
Maybe descendants of enslaved Africans will soon become scapegoated as “anchor babies,” the children of immigrants whose American birthplace provides an easier pathway for their parents to stay here. (The Supreme Court may revoke birthright citizenship, too.) There are plenty of Black immigrants, and like Latinos, they’re also disproportionately punished. And in my own life, I’ve been profiled by police, both as a New York City teen when a stop-and-frisk policy was legal and as an adult when it was purportedly outlawed. But, for now, I can acknowledge where my social position and lineage provide me some margin that not everyone enjoys.
But whether or not there’s an accent in your name, leaving your passport at home is an act of faith in your appearance, not your presumed innocence under the law. Summoning our country’s most horrific ghosts, the Supreme Court updated the logic of Dred Scott to solve the human rights abuses of today.
Does the Bill of Rights still matter? Sure. But it helps to look the part.
This story was originally published September 13, 2025 at 4:57 AM with the headline "Court ruling that lets ICE racially profile harks back to Dred Scott | Opinion."
