A recent opinion by Supreme Court Justice Brett Kavanaugh, which has all of the appearances that he wants the expression “Kavanaugh stops” to fade into obscurity, was panned by Slate legal analysts Dahlia Lithwick and Mark Joseph Stern on Tuesday.
At issue was Kavanaugh, appointed to the nation’s highest court by Donald Trump in 2018 despite concerns about his past, concurring on a ruling banning the use of National Guard in Chicago, where he clarified, or “walked back” as Lithwick and Stern accused, his stance on which law enforcement stops pass constitutional muster.
In a much-criticized opinion in September, the justice supported the Trump administration’s campaign of randomly stopping Hispanics on the street in an effort to root out undocumented immigrants.
At the time he wrote, “Immigration stops based on reasonable suspicion of illegal presence have been an important component of U.S. immigration enforcement for decades,” before allowing that “apparent ethnicity” could be a “relevant factor” for demand of proof of citizenship. He also suggested that any questioning is “typically brief” and U.S. citizens and legal residents would “promptly go free.”
That opinion gave rise to what is now called a “Kavanaugh stop” — coined by Drexel Kline School of Law Professor Anil Kalhan.
According to the two Slate analysts, Kavanaugh now opining in a recent footnote, “that race and ethnicity could not be ‘considerations’ when officers make ‘immigration stops or arrests,’” is a stab at cleaning his already troubled legacy.
“I think he is begging us to please cease and desist calling them ‘Kavanaugh stops.’ This footnote is buried in the opinion and doesn’t really have anything to do with it. He just says: By the way, this conflict is about immigration stops,” Stern offered.
“Wow! Immigration stops can’t be based on race? What a concept!” Lithwick sarcastically added. “A concept that you, Brett Kavanaugh, rejected just a few months ago, in September, in the Vasquez Perdomo case. Back then, you wrote that immigration stops could be at least partly based on race or ethnicity, and that a person’s appearance as Latino could be one reason for them to be stopped by immigration officers.”
“I think he is trying to rid ‘Kavanaugh stops’ from the discourse, which is never going to happen. And maybe he’s trying to send a message to the Trump administration to cool it down,” Stern suggested before pointing out that CBP Chief Greg Bovino pounced on the September opinion to ramp up grabbing anyone with brown skin off the streets with Kavanaugh’s legal blessing.
Stern then added, “Every intelligent observer understood what was going to happen when his opinion dropped in September. Now he seems to regret it—though he still hasn’t apologized directly or acknowledged that he was wrong, and is pretending that what he said earlier is consonant with what he’s saying now. Too little, too late.”
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