Brett Kavanaugh’s Attempt To Retract 'Kavanaugh Stops' Is Too Little, Too Late

Justice Brett Kavanaugh’s September opinion suggesting that a person’s "apparent ethnicity" could be a "relevant factor" in federal immigration stops has become shorthand for a wave of racially targeted enforcement. Critics say Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) treated his language as a green light to stop and detain Hispanic people—frequently with excessive force—until they produced proof of lawful status. Law professor Anil Kalhan dubbed those encounters "Kavanaugh stops," and the phrase quickly spread as lawyers and civil-rights groups documented abuses nationwide.

In practice, the encounters Kavanaugh characterized as "brief investigative stops" were often prolonged and abusive; many people—some of them U.S. citizens—reportedly were brutalized, detained, or coerced to prove their status even after asserting legal residency. Courts and advocates warned that the opinion’s wording sanitized a harsher reality, enabling enforcement practices that relied on appearance and ethnicity.

Last week, in a concurrence to an unrelated Supreme Court decision that blocked the deployment of the National Guard, Kavanaugh inserted a footnote asserting that officers must not make interior immigration stops or arrests "based on race or ethnicity." That statement—saying race and ethnicity cannot be "considerations"—directly conflicts with his earlier view that a person’s apparent ethnicity could serve as a "factor" in deciding whom to stop. Kavanaugh did not acknowledge this reversal; instead he described the law as "longstanding and clear," even though his own September opinion complicated that clarity.

Podcast Reaction

Dahlia Lithwick: It’s the icing on the cake that Brett Kavanaugh, in an unrelated opinion, appears to give himself forgiveness for his notorious "Kavanaugh stops" ruling.

Mark Joseph Stern: He seems to be begging people to stop using the term "Kavanaugh stops." The footnote is buried in an opinion unrelated to immigration stops, where he nonetheless claims the law is "longstanding and clear": that immigration stops require reasonable suspicion of illegal presence, must be brief, arrests require probable cause, officers must not employ excessive force, and they must not make interior immigration stops or arrests based on race or ethnicity.

Hosts Lithwick and Stern argued the footnote does not undo the practical consequences of Kavanaugh’s earlier language. They suggested the justice may be trying to distance himself from the label—and to send a quiet signal to the administration as CBP officials publicly defended racial profiling. But commentators counter that a brief qualifying footnote in an unrelated case cannot erase what enforcement agencies have already operationalized.

Why This Matters

The episode highlights broader concerns about the Court’s use of the shadow docket: when justices issue opinions or concurrences that expand enforcement latitude or reinterpret precedent in ways the executive branch can quickly act on, the resulting real-world effects are often irreversible. If a justice later claims the law was "clear" all along, that does little to rectify harms that have already been inflicted or to provide redress for those affected.

In short, Kavanaugh’s footnote may aim to walk back public perception, but it does not erase the chain of actions his earlier words set in motion. Critics say the justice has neither apologized nor explicitly reconciled the contradiction between his statements—so for many observers, the label "Kavanaugh stops" and the harms it describes will endure.