from the 50-days-more-than-should-have-happened dept
It was just last month that Brett Kavanaugh gave his explanation for why it was perfectly okay for Homeland Security goons to profile brown people and detain them based on nothing more than the color of their skin. While his cowardly colleagues in the majority on that shadow docket decision refused to explain their thinking, Kavanaugh actually wrote a concurrence that was so out of touch with reality as to be embarrassing. But at least it was an explanation.
The key bit from him that has stood out is this:
Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.
It’s this weird, privileged, out-of-touch statement that if ICE or CBP stop you for being brown, they’ll let you go as soon as you show them that you’re an American citizen. Of course, we knew at the time that wasn’t true. Hell, there were details that Kavanaugh ignored in that very lawsuit, which Justice Sotomayor called out in her dissent. But literally in this very lawsuit was the documentation of how it wasn’t so simple:
To give just one example, Plaintiff Jason Brian Gavidia is a U.S. citizen who was born and raised in East Los Angeles and identifies as Latino. On the afternoon of June 12, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to “Stop right there” while another “ran towards [him].” The agents repeatedly asked Gavidia whether he is American—and they repeatedly ignored his answer: “I am an American.” The agents asked Gavidia what hospital he was born in—and he explained that he did not know which hospital. “The agents forcefully pushed [Gavidia] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” An agent asked again, “What hospital were you born in?” Gavidia again explained that he did not know which hospital and said “East L.A.” He then told the agents he could show them his Real ID. The agents took Gavidia’s ID and his phone and kept his phone for 20 minutes. They never returned his ID.
Drexel law professor Anil Kalhan quickly dubbed these bullshit pretextual stops of US citizens as “Kavanaugh stops” and the name has stuck.
While there is an effort to challenge these further in court, for now the goon squad known as ICE is unleashed even more than usual. We now know that there are at least 170 US citizens who have been held by immigration officials, and there are probably even more not yet accounted for.
It feels like every day we hear about another few:
These Kavanaugh stops are a stain on the American concept of civil liberties and due process, and they should be a stain on Brett Kavanaugh’s legacy. Legal journalist Chris Geidner just ran a piece on 50 days of Kavanaugh stops, and what a shameful moment this is of American bigotry.
Geidner has directly submitted questions to Kavanaugh to see how he feels about all of these Kavanaugh stops that show his claim of “brief encounters” with law enforcement were bullshit:
I asked Justice Kavanaugh on October 14, “Do you have any comment on the ICE stop of Maria Greeley, a U.S. citizen, who was reportedly stopped, ziptied, and told she didn’t ‘look like’ a ‘Greeley’ despite being a U.S. citizen?“
On both occasions, I also asked Kavanaugh whether he still thinks he was correct when he wrote that these stops are “typically brief” and that all of this is fine because “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.”
Finally, I asked Kavanaugh if he was aware of the “Kavanaugh stop” terminology and whether he had any comment on it.
[….]
So, I asked Justice Kavanaugh on October 16, “Do you have any comment on the Pro Publica report that found ‘more than 50 Americans who were held after [immigration] agents questioned their citizenship’ during 2025. ‘They were almost all Latino,’ per the report.“
In addition to the other questions previously raised, I also asked Kavanaugh whether “the possibility of after-the-fact ‘excessive force’ claims” is “a sufficient answer to this ongoing, regularly occurring problem?”
Did you guess what happened? Of course you did!
I have not received a response from him or his chambers.
You can already see the horrific legacy that is forming around the concept of Kavanaugh stops. This is a legacy that doesn’t go away easily. It’s like the Dred Scott decision, the Korematsu decision, or Buck v. Bell. Supreme Court decisions that nearly everyone now looks back on in horror.
These are all horrible, hateful decisions by out-of-touch bigots, who can’t even fathom a world in which those less fortunate themselves even matter, and thus their rights and dignity are barely given a second thought.
The Supreme Court still has a chance to fix this, since Kavanaugh stops were only defined by Justice Kavanaugh in a shadow docket concurrence. While those other cases all took decades for everyone to realize how fucked up they were, this one we can see in real time what a stain it is for anyone who believes that America respects basic civil liberties like due process and concepts like probable cause.
But, for now at least, that stain should stick to Brett Kavanaugh. He’s justified this. He’s insisted these kinds of stops are no big deal, even as there was evidence then, and even with more mounting evidence now, that immigration officials don’t give a shit if you are an American citizen. If you’re darker skinned, they can treat you like shit, lock you up, beat you up, ignore your protestations and even evidence of American citizenship.
It is a deep, dark stain on America as a supposed land of freedom, and it should be tied up with Brett Kavanaugh’s legacy forever.
Filed Under: 4th amendment, brett kavanaugh, civil liberties, civil rights, immigration, kavanaugh stops, rights
