But there is one instance in which a justice did attempt to explain himself in a recent shadow docket ruling, only for that justice’s reasoning to blow up nearly immediately after its first encounter with the real world: Brett Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo, in which the Supremes stayed a lower court ruling that was specifically impeding the Department of Homeland Security from racially profiling people for immigration stops. The larger court, as is its wont, failed to offer a ruling. But Kavanaugh opted to weigh in all the same. His reward is a heaping helping of infamy in the form of a specific secret police tactic that many have taken to calling “the Kavanaugh stop.”
As Ford noted, the law enforcement encounters that formed the basis of the case itself could hardly be called “brief.” One of the plaintiffs in Noem testified that his attempt to show valid proof of U.S. citizenship did not make the encounter any shorter, as the agents “refused to believe the validity of his California driver’s license.” As Justice Sonia Sotomayor recalled in her dissent, “The agent said the ID was insufficient, ‘grabbed [his] arm,’ escorted him to a vehicle, and drove him to a ‘warehouse area’ for further questioning.” None of that sounds at all like the quick interaction that Kavanaugh suggested was the theoretical norm. And in practice, the Kavanaugh stop hasn’t hewed to his imagined brief encounter, either.
If the news is any guide, Sotomayor’s fears are now reality. As the Chicago Tribune recently reported, Chicago resident Rueben 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 went straight after them.” What followed was a classic Kavanaugh stop: Cruz and his friend were asked for “papers” proving their citizenship. Cruz, who was not carrying such papers on his person, was then bundled into the agents’ vehicle and interrogated. Cruz was eventually let go, but not before the agents fined him $130 for “not having his papers.” The ordeal left Cruz angry: “It’s not fair because I said, let’s go to my house and I’ll show you my papers. I’m a resident.”
The possibility that Trump’s ICE agents, who have effectively been given carte blanche to abuse their authority, might simply dismiss their quarry’s valid proof of citizenship appears to have not occurred to Kavanaugh. But it has definitely occurred to the jabronis snatching up brown people in American cities. In a second Kavanaugh stop detailed by the Tribune, a 44-year-old Latina woman named Maria Greeley was out for a jog when she was jumped by federal agents who zip-tied her and detained her despite the fact that she carries her passport with her at all times to prove that she was born in the United States. According to the report, agents remarked that she didn’t “look like a Greeley,” dismissed her documentation, and accused her repeatedly of lying.
That Kavanaugh has to own the Kavanaugh stop is cold comfort. Who knows if it’s even possible to shame or humiliate Brett Kavanaugh anyway? It’s very possible that transforming the United States into a country more reminiscent of Nazi Germany’s “Ihre Papiere bitte” era is precisely the legacy that Kavanaugh sought for himself. We’re the ones who are stuck with the consequences.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.
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