SCOTUS's Hypocrite Kavanaugh Regrets Backing ICE's Brutality to Hispanics

The beer-guzzling supreme court justice, Radical Right judge Brett Kavanaugh, must have had a few brews when he said he regretted voting to enable Trump's ICE to arrest and brutalize US citizens who look "Hispanic". A good third of the country's population is of Hispanic origin. Studying law and being appointed by Trump are no guarantees of intelligence, decency and integrity.

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Brett Kavanaugh Is Trying to Walk Back “Kavanaugh Stops.” Too Late.

Dahlia Lithwick and Mark Joseph Stern
Tue, December 30, 2025 

Justice Brett Kavanaugh does not seem happy that his name has become synonymous with racist immigration enforcement. In September, the justice [KAVANAUGH] wrote that Hispanic residents’ “apparent ethnicity” could be a “relevant factor” in federal agents’ decision to stop them and demand proof of citizenship. Immigration and Customs Enforcement and Customs and Border Protection promptly seized upon his opinion as a license to stop any Hispanic person on the basis of race—often with excessive, even sadistic force—and detain them until they proved their lawful presence. Law professor Anil Kalhan termed these encounters “Kavanaugh stops,” and the name swiftly caught on as evidence mounted that they had become standard practice across the country. Lawyers also provided courts with evidence that Kavanaugh had sanitized the reality of this practice to the point of fiction. The justice claimed that these were “brief investigative stops” and that any lawful resident would be “promptly” released. In truth, federal agents brutalized, kidnapped, and tormented people—including many U.S. citizens—simply because of their ethnicity, even after they asserted legal status.

Now it appears that Kavanaugh has some regrets. Last Tuesday, the justice backtracked from his previous position without quite acknowledging the retreat. He did so in a concurrence to the Supreme Court’s decision to block President Donald Trump’s deployment of the National Guard—a case that does not even directly concern “Kavanaugh stops.” In a footnote, he declared that race and ethnicity could not be “considerations” when officers make “immigration stops or arrests.” That directly conflicts with his earlier assertion that officers can use race and ethnicity as a “factor” when deciding whom to detain. The two positions cannot be reconciled. Yet Kavanaugh did not admit that he had changed his position; he simply pretended that the law in this area was “clear,” when he himself muddied it just months earlier.

On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed this strange, tacit walk-back.

Dahlia Lithwick: 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.

Mark Joseph Stern: 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. Then he segues into his view on the law around immigration stops, which he claims to be “longstanding and clear.” He writes: “The Fourth Amendment requires that immigration stops must be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force. Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.”

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.

I wonder what has changed since September.

Well, 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. Because now we have CBP Chief [the bovine human] Greg Bovino declaring that agents can engage in racial profiling. Bovino has even said that every single person in this country has to walk around with proof of citizenship or else face arrest on suspicion of being undocumented. Kavanaugh is probably a little unnerved that all these violent, racist arrests and abductions are taking his name. He doesn’t want to be remembered by history as this great villain who greenlit the worst wave of violent racial profiling by the federal government in ages. But this footnote changes nothing. He cannot walk back what he has unleashed.

This goes to all the quibbles that we surfaced about the shadow docket when Vasquez Perdomo came out. Because if the justices are going to go ahead and reverse precedent about immigration stops, and then their decision gets operationalized by the Trump administration, they can’t say: Oh, sorry, we didn’t mean that. They certainly can’t do it in a case that does not directly relate back to “Kavanaugh stops.” So this is weird dicta in a random case that is trying to undo crappy but unfortunately enforceable doctrine. And Kavanaugh is just like: No, it’s the shadow docket—I can do what I want! I get a do-over. I get takesies-backsies. We’re now at full Etch A Sketch: I’m making law. I’m breaking law. I’m changing law.

I’ve seen some commentators praise Kavanaugh for sort of responding to criticism here. I do not think he gets any points. He did what he did in Vasquez Perdomo; he should have foreseen the consequences. 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.