Former President Donald J. Trump and Supreme Court Justice Brett Kavanaugh pose for photos Thursday, Nov. 8, 2018, during the investiture of Justice Kavanaugh at the Supreme Court of the United States in Washington, D.C. (Official White House Photo by Shealah Craighead). Image via Flickr.
Conservative Supreme Court Justice Brett Kavanaugh appears to be backing away from his "racist immigration enforcement" ruling, which brought the phrase "Kavanaugh stop" into the lexicon. In a podcast segment from Tuesday, two legal experts torched the Trump-appointee for giving "himself the gift of forgiveness," and said that removing his name from racist arrest practices is "never going to happen."
In September, Kavanaugh wrote in a ruling that the "apparent ethnicity" of Hispanic individuals could be a "relevant factor" for federal agents who decide to confront them about their legal status and demand proof of citizenship. This was widely criticized as the Supreme Court condoning racism and flying in the face of the Fourth Amendment's protections against unreasonable searches. Anil Kalhan, a law professor at Drexel University, dubbed these sorts of confrontations "Kavanaugh stops," a term that became increasingly common as news of federal agents harassing Latino individuals increased.
Now, in a ruling from earlier this month, Kavanaugh appeared to try and walk back that previous ruling. Writing in a concurrence to the Court's decision to block Trump from deploying the National Guard to Illinois, the justice added a footnote stressing that race and ethnicity could not be considered by agents conducting "immigration stops or arrests." The overall case did not directly concern immigration arrests, so the note stood out to many observers, who considered an attempt to distance himself from the "Kavanaugh stops" moniker.
Discussing the concurrence on a Tuesday episode of Slate's law podcast, "Amicus," co-hosts Dahlia Lithwick and Mark Joseph Stern torched "this strange, tacit walk-back."
"It’s the icing on top of the Christmas cake that Brett Kavanaugh, in an unrelated discussion, gave himself the gift of forgiveness for his notorious 'Kavanaugh stops' opinion," Lithwick said.
"I think he is begging us to please cease and desist calling them 'Kavanaugh stops,'" Stern responded. "This footnote is buried in the opinion and doesn’t really have anything to do with it... Wow! Immigration stops can’t be based on race? What a concept! 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."
He continued: "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."