Justice Kavanaugh, who humiliated himself on the record, now concerned his racism will dominate his “legacy”
There is a version of Brett Kavanaugh permanently preserved in the congressional record, tearfully explaining slang like “boofing,” angrily insisting he liked beer, and treating a Supreme Court confirmation hearing like a disciplinary hearing he resented attending. That man is now reportedly troubled that allegations of racism connected to immigration enforcement and policing may overshadow his judicial career. This is not a reinvention so much as a late-arriving awareness of cause and effect.
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.
The irony is not subtle. Kavanaugh has repeatedly supported legal doctrines that excuse or minimize the role of discriminatory intent in policing and immigration enforcement. The beer-afficionado has argued that outcomes matter less than formal justifications. In practice, that jurisprudence has helped insulate ICE and other authorities from accountability when stops disproportionately target people of color. When applied to others, this framework is treated as a necessary deference to law enforcement. When it brushes against him, it suddenly looks like an injustice.
For years, Kavanaugh has helped build a legal world where people are told to accept invasive stops as the cost of order. His current outrage suggests he understands the problem perfectly. He just never expected it to be named after him.