Believe it or not, there was a time when emergency rulings by the Supreme Court were not regularly controversial; they were simply a means by which the court could deal with urgent legal crises, such as petitions involving the death penalty. But a key feature of the Trump era is the transformation of the emergency list into a “shadow list”: unsigned regulations that had profound influence on the country. Apart from the fact that these regulations have “Heads beats Trump, tails means Democrats lose“bent, they are, as Erwin Chemerinsky notesoften proposed without much legal explanation, but often breaks precedent. The judges themselves may not like this term “shadow list”, but they still seem to like to operate in the shadows.
But there is one case where a judge tried to explain himself in a recent shadow-list ruling, but that judge's reasoning exploded almost immediately after his first encounter with the real world: Concurring Opinion by Brett Kavanaugh V Noem vs. Vasquez Perdomo in which the Supreme Council upheld a lower court decision that specifically prevented the Department of Homeland Security from racially profiling people to stop immigration. The larger court, as is usually the case, was unable to reach a decision. But Kavanaugh decided to speak his mind anyway. His reward is a huge dose of infamy in the form of a special secret police tactic that many have come to call “Kavanaugh stop“
Here's the basic background. How New RepublicMatt Ford reported After the Noem case was decided, Kavanaugh's surprise agreement led to some efforts to “minimize the consequences” of an encounter with law enforcement: “Importantly, reasonable suspicion means only that immigration officials may briefly stop the person and inquire about immigration status,” Kavanaugh wrote. “If the person is a U.S. citizen or is otherwise in the United States lawfully, the person will be free to leave after a brief encounter. Only if the person is in the United States illegally can the stop result in further immigration proceedings.”
As Ford noted, the meetings with law enforcement that formed the basis of the case itself could hardly be described as “brief.” One of the plaintiffs in Mention testified that his attempt to present valid proof of U.S. citizenship did not make the encounter shorter because the agents “refused to believe the validity of his California driver's license.” As Justice Sonia Sotomayor recalled in her dissent: “The agent said that identification was not enough; [his] hand,” escorted him to the car and took him to the “warehouse area” for further questioning.” This is nothing like the rapid interaction that Kavanaugh believed was the theoretical norm. And in practice, stopping Kavanaugh also did not live up to his imagined short meeting.
Typical components of a Kavanaugh stop involve individuals being detained specifically for immigration purposes, with race being a definite or probable factor in the decision underlying the stop—Fourth Amendment protections against unlawful searches and seizures be damned. Sotomayor saw a grim future in the court's ruling: “We should not live in a country where the government can arrest anyone who looks Hispanic, speaks Spanish, and appears to be working a low-wage job.”
If the news is any guide, Sotomayor fears are now reality. How Chicago Tribune recently reportedChicago resident Ruben Antonio Cruz, a 60-year-old man originally from El Salvador, was sitting with a friend in Rogers Park when “immigration officers stopped their truck and came right behind them.” What followed was a classic Kavanaugh stop: Cruz and his friend were asked for “documents” proving their citizenship. Cruz, who did not have such documents on him, was then forced into the agents' car and interrogated. Cruz was eventually released, but not before agents fined him $130 for “no documentation.” The ordeal angered Cruz: “It's not fair because I said, let's go to my house and I'll show you my papers. I'm a resident.”
Tribune notes that while federal law requires registered foreign nationals to carry proof of registration with them at all times, “until the second Trump administration, this was rarely enforced.” The detention prompted criticism from the ACLU's Ed Yonkey: “America has never been a place where people need to 'show their ID.' Ticketing a lawful permanent resident and forcing him to appear in court and pay a fine for not having documents on him is unnecessary and cruel.” Unfortunately, this is likely to become commonplace as Trump's thugs, freed from legal obligations by the Supreme Court, force Kavanaugh to cease some of his day-to-day activities.
The possibility that Trump's ICE agents, who were essentially given carte blanche to abuse their powers, might simply reject valid evidence of their victim's citizenship did not appear to have occurred to Kavanaugh. But this has definitely happened with the jabronis kidnapping brown people in American cities. At the second stop Kavanaugh described in detail Tribune, A 44-year-old Latina named Maria Greeley was out for a jog when federal agents attacked her, tied her up and detained her, even though she always carries her passport to prove she was born in the United States. According to the report, agents noted that she “didn't look like Greeley,” rejected her identification and repeatedly accused her of lying.
One of the most obvious things about impeachment in the Supreme Court is that it is so often out of touch with the real world – perhaps an inevitable condition of giving nine people special robes and a lifetime job guarantee and then stuffing them into a grave building to stew in their own party juices with no one to answer to. Kavanaugh's flawed reasoning may simply be the product of profound naivety. But since this all happened as part of a shady case in which the Trump administration sought emergency relief in the form of permission to racially profile people, I think it's hard to believe that Kavanaugh felt compelled to try to put a good spin on a reprehensible ruling.
It is cold comfort that Kavanaugh should own the Kavanaugh stop. Who knows if it's even possible to disgrace or humiliate Brett Kavanaugh? It is entirely possible for the United States to become a country more reminiscent of Nazi Germany.”Your documents please“Era” is exactly the legacy Kavanaugh was looking for for himself. We are the ones stuck in the consequences.
This article first appeared in Power Mad, TNR's weekly newsletter written by Associate Editor Jason Linkins. Register here.
