When the Fourth and Fourteenth Amendments are replaced with Kavanaugh stops

Brett Kavanaugh’s assertions that the Trump/Miller version of ICE does not engage in racial profiling or detain anyone who can show that they are in the country legally were not consistent with even the facts of the case the Court was reviewing. Since then, the contrary evidence has continued to accumulate:

Gregory Bovino, the officer in charge of roving immigration enforcement in American cities, admitted this week that his agents arrest people based on “how they look.” Asked by a WBEZ reporter to elaborate, Bovino said the pertinent question was how “they” appear as “compared to” the reporter, a white man. Bovino’s candor stripped away any pretense: Immigration and Customs Enforcement agents are detaining individuals because they look Latino.

Three weeks ago, the Supreme Court greenlit that approach, effectively legalizing racial profiling in immigration enforcement by a 6–3 vote. Although the majority did not explain its decision, Justice Brett Kavanaugh tried to muster a defense in a solo concurrence whose reasoning crumbled upon scrutiny. Kavanaugh insisted that ICE agents may use a person’s “apparent ethnicity” as a “relevant factor” when deciding whether to arrest them. But he assured readers that agents may use ethnicity only in combination with other, nonracial factors when deciding whom to target. He also insisted that these “immigration stops” are a minor inconvenience for “those individuals who are legally in the country,” writing: “The questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.”

In the short time since Kavanaugh wrote that opinion, his assertions have been proved demonstrably, almost laughably false too many times to count. As Sherrilyn Ifill notes, the justice’s claims were already belied by the factual record in that case, which showed ICE agents violently harassing and detaining American citizens for extended periods simply because they are Latino. Now the agency, freed from constitutional restraints by SCOTUS, has stopped pretending to be engaged in anything other than racial profiling. Bovino’s admission only confirms what we already knew: These detentions, far from the “brief” inconvenience Kavanaugh described, are often lengthy, violent, and dangerous. Ifill and Anil Kalhan, a professor of law at Drexel University, have proposed calling these detainments “Kavanaugh stops,” a label that’s quickly catching on.

Perhaps the most comprehensive account of Kavanaugh stops so far arrived last Thursday, in the form of a new lawsuit against the Trump administration brought by victims of racial profiling in the District of Columbia. The plaintiffs, a group of citizens and legal residents, describe ICE and Customs and Border Protection agents detaining them for hours—or even overnight—because they happen to be Latino. These accounts make a mockery of Kavanaugh’s insistence that these stops are brief and painless for those who have a right to live in this country.

The facts are incredibly damning to anyone who cares about the most fundamental freedoms guaranteed by the Constitution, which alas does not include any of the Republican nominees to the Supreme Court. But the question remains: how are they as junior high school basketball coaches?

…Some historical perspective from Garrett Graff.