Did Brett Kavanaugh Just Apologize for Butchering the Fourth Amendment? Maybe.

Puzzling over a curious omission from the conservative justice.

Happy New Year, and welcome to the latest edition of the Injustice System newsletter. We have a bit of a conundrum to puzzle over today, so let's get started.

Back in September, the U.S. Supreme Court issued an unsigned emergency order that effectively permitted racial profiling as part of President Donald Trump's roving immigration crackdowns. Writing in concurrence, Justice Brett Kavanaugh claimed that it was only "common sense" to allow immigration agents to stop people based on such "relevant factors" as their "apparent ethnicity."

But what about the Fourth Amendment right to be free from unreasonable search and seizure regardless of skin color? What about those U.S. citizens whose "apparent ethnicity" would now land them in the federal dragnet? Was Kavanaugh worried about that?

He did not seem to be worried about that. "As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief," Kavanaugh asserted, "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."

Now fast-forward to last week. The Supreme Court issued another unsigned emergency order on December 23 in another immigration-related case, except this time Kavanaugh penned a concurrence that approached the issue of rights-violating federal officers quite differently. Here is what Kavanaugh wrote last week:

The State and the Government disagree about whether the immigration officers have violated the Constitution in making certain immigration stops and arrests. The basic constitutional rules governing that dispute are longstanding and clear: 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.

Notice the difference between the two Kavanaugh opinions. In September, Kavanaugh claimed that when a citizen is mistakenly stopped by immigration agents, "the questioning in those circumstances is typically brief" and the citizen "may promptly go free." In December, however, Kavanaugh stressed that "stops must be brief" and "officers must not make interior immigration stops or arrests based on race or ethnicity." (Italics added.)

So, after assuring citizens in September that their encounters with immigration agents will be brief and harmless, Kavanaugh is now spelling out for the government what its agents "must" and "must not" do. Put differently, Kavanaugh has stopped reassuring the citizenry that federal agents will obviously obey the Constitution during immigration stops.

It would appear that Kavanaugh has finally come to recognize what has been apparent to some of us all along. Namely, that Trump's immigration crackdown actively imperils the rights of many U.S. citizens.

Good for Kavanaugh, right? Better late than never? Well, maybe. Because it is also worth noting that Kavanaugh's December opinion makes no reference to his September opinion. How should we make sense of this mysterious and rather glaring absence or omission?

"It is an old maxim of mine," the great fictional detective Sherlock Holmes once remarked, "that when you have excluded the impossible, whatever remains, however improbable, must be the truth."

It seems impossible that these two Kavanaugh opinions are unrelated to each other. So what are we left to conclude about their connection? What is Kavanaugh not saying about the link?

One conceivable conclusion is that Kavanaugh now seeks to walk back his unfortunate past statement without explicitly acknowledging his past misjudgment.

Another conceivable conclusion is that Kavanaugh now hopes to apologize for butchering the Fourth Amendment without doing any actual apologizing. Call it a mea culpa minus the mea.

Needless to say, none of this reflects well on Kavanaugh and his possible motivations. Perhaps we'll get a more forthright account from him in a future case.

Comments

[Mickey Rat]

"Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity."

As national origin often corresponds with race and ethnicity, how do you prove that it was not "racial profiling"?

Root seems to be extremely conspiratorial in this article.

[Nelson]

Considering a well-known Native American actress was stopped on her way to a bus stop, it seems like there is a tad bit of any-brown-skin-is-suspect profiling going on. Just a skosh.

And since a LOT of American citizens have brown skin, that should be a huge problem for anyone purporting to be a libertarian.

In case you need a refresher, racial profiling is a very bad thing.

[Patrick Henry, the 2nd]

Its actually not a bad thing

[Nelson]

Sure. Assuming someone is a criminal because they have the same skin color as someone else who is a criminal isn’t bad at all.

So would white people complain if they were assumed to be fraudster every time they made a financial transaction because whites are the dominant criminals in financial crimes? Or if white men were assumed to beat their wives because domestic violence rates are higher among white men? Or if white men had extra scrutiny when buying a gun because they are the majority of family annihilators? Hell, should every man be suspected to be a rapist and murderer and drunk driver and a criminal of every other kind where men are a larger share of criminals than their share of the population?

People who want to be racist say, “These racial groups have a higher percentage of total crimes than their share of the population” because that sounds reasonable, but isn’t (this is called sophistry).

Saying “The average black person has a .000065% chance of being a violent criminal, while the average white person has a .000063% chance, so all black people should be assumed to be violent criminals” would seem like racism, because it is.

[EISTAU Gree-Vance]

Tim Walz, is that you? Lol.

[Incunabulum]

Uhm, the government already assumes I am committing financial crimes. Hence the 5k transfer limit and the push for the IRS to examine transactions down to 600 dollars.

[Gorbag]

Which violates both the 4th and the 9th! Now if we could only pass an amendment where federal officers not only don't get absolute immunity for violating the rights of the people (including passing laws that violate), but also get felony convictions, to keep them out of office to do it again.

[Nobartium]

And worse yet, profiling works.

But egalitarian uber alles.

[Nelson]

It doesn’t. Factually, statistically, and actually it is a highly inefficient policing strategy that returns a lot of nuisance and penny-ante charges for a whole lot more effort.

[Nobartium]

Of course it works.

You do it all the time, every time that you discriminate.

It is only a matter of time before the CRA gets tossed.

[SCOTUS gave JeffSarc a big sad]

No, it’s just fine. We never should have stopped. You just want unlimited illegals here with no ability to stop and deport them.

[Clipton]

It depends. Racial profiling for no reason is a bad thing. Racial profiling for a legitimate law enforcement reason is a good thing. If a robbery suspect is described as a young Black male with distinctive clothing, the police stopping elderly Black men or Black women would be a bad thing but stopping young Black men fitting the clothing description would be a good thing. This is known as "public safety."

[Nelson]

“ If a robbery suspect is described as a young Black male with distinctive clothing”

That isn’t racial profiling. You are describing a thing that isn’t racial profiling and sayong that’s it’s an example of “good” racial profiling.

https://www.ebsco.com/research-starters/law/racial-profiling-overview

There is no “good” racial profiling.

[Clipton]

It absolutely is racial profiling. The police are looking for a man with a racial profile, a Black man, not a White, Asian, or Hispanic man, because they have a reason to do so. What you're doing is describing clear racial profiling as not racial profiling because you know it is justified. You're playing a definitional game which excludes justified racial profiling from racial profiling just so you can continue to virtue signal and claim all racial profiling is bad.

[Nelson]

“ It absolutely is racial profiling.”

Obviously you didn’t read the definition. It isn’t action based on a description. At all. That’s called normal police work.

Educate yourself:

“ Racial profiling refers to the practice in law enforcement where individuals are targeted for stops, searches, or investigations based on their race, ethnicity, nationality, or religion rather than any specific suspicious behavior”

[Clipton]

You obviously didn't read your own definition. Being a young Black male wearing clothing isn't "suspicious activity" required by your own definition. The police are stopping him because his RACE fits a description not because he's doing anything suspicious. That's racial profiling which under the circumstances is a good thing.

[Nelson]

“ You obviously didn't read your own definition. Being a young Black male wearing clothing isn't "suspicious activity" required by your own definition.”

No, but having a witness describe a young black male with dradlocks is something that isn’t racial profiling. That’s an actual description by an actual witness that gives police an actual reason to target young black males with dredlocks in the area.

You seem to be intentionally ignoring that racial profiling is actions in the absence of a reason to do anything. Having a reason to stop a young black male with dredlocks, like matching the description of the perpetrator of a nearby crime, is not racial profiling at all.

No matter how many times you try to insist that a racial element to a witness description is somehow “profiling”, when the definition of racial profiling is about targeting people without a reason, it will never change the definition of racial profiling.

[Clipton]

You've now backed off of your own definition of racial profiling as targeting someone "based on their race rather than any specific suspicious behavior" -- as I knew you eventually would -- to conceding it's justified for the police stop a young Black male who matches the racial description of a suspect even though that person wasn't doing "any specific suspicious behavior." Since it's not suspicious for a young Black male to walk down the street in clothes the police stopping him based on his race based on a description is, by YOUR definition, racial profiling because he's not acting suspiciously. So now you've changed your definition of racial profiling to justify the police stopping him if he matches a racial description of a perp. So we are back to square one where I said racial profiling is acceptable -- even if the person isn't acting suspiciously (your definition) if there is a valid law enforcement reason. Thank you for agreeing with me.

[Nelson]

“ You've now backed off of your own definition of racial profiling as targeting someone "based on their race rather than any specific suspicious behavior" -- as I knew you eventually would”

What the hell are you talking about. I have changed nothing about what I said racial profiling is. Everything I said - including the link to a definition - is completely consistent. Do you actually understand English? Or do you have a reading comprehension problem?

“ to conceding it's justified for the police stop a young Black male who matches the racial description of a suspect”

Because matching a description is a reason. Hence it’s not racial profiling. You can’t possibly be stupid enough to fail comprehension on such a basic and simple point.

[Nelson]

“You're playing a definitional game”

Yes, I believe words have meanings. What a crazy idea.

By definition, racial profiling requires the absence of a reason to suspect illegal behavior.

[Incunabulum]

It absolutely is racial profiling.

Contrast to airport security where we are expected to pretend Asians, whites, latinos, and blacks are equally likely to blow up aircraft.

[Incunabulum]

Which 'well known' Indian actress?

She must be extremely 'well known' if she's taking the city bus;)

[Rev Arthur L kuckland (5-30-24 banana republic day)]

The ones with rags on their heads are German or brits.

[MasterThief]

He's dishonest. That is all. Simple questions and arguments dismantle his narratives. As dumb as he is, I doubt he is unaware of how empty his positions are.

[damikesc]

Root is DESPERATELY hoping to not be laughably wrong on something for a change.

[windycityattorney]

Bullshit. Root has been consistent. He was right to criticize the earlier Kavanaugh concurrence on this issue and he is right to point out Kavanuagh is now walking it back. BECAUSE KAVANUAGH IS CLEARLY walking it back.

You cannot square the two opinions. Kavanaugh's earlier work cited a case related to border encounters - which under US Sup Ct precedent - are treated differently for 4th amendment purposes but he misapplied the precedent to the "interior" i.e, NOT the border. That was a factual mistake which led to a legal mistake. For better or worse, law enforcement encountering 'brown' people swimming across the Rio Grande toward the US side can automatically stop them on suspicion of illegal presence/illegal entry etc...

Doing the same thing in the middle of Iowa is different and the precedents treat them different. He conflated the relaxed standard in one for the whole of the country and now he has walked that back. It is clear he was notified of his mistake otherwise the footnote in the Illinois case makes no sense. It was unnecessary to the decision which was about a completely separate legal topic of calling forth the nat'l guard.

[Sometimes a Great Notion]

Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.

But "papers, please" is the best part

[JesseAz (RIP CK)]

U.S. Supreme Court issued an unsigned emergency order that effectively permitted racial profiling as part of President Donald Trump's roving immigration crackdowns.

Damon opens with a retarded leftist lie. The ruling just says race can be a factor and doesn't have to be ignored.

Damon remains retarded.

[TJJ2000]

Wait, Wait ... It's not the 1A or the 14A that grants 'invaders' a right to the USA; It's the 4A! /s

Maybe Kavanaugh would make more sense if Reason was so *desperate* to find a 'right' to invade.

[Patrick Henry, the 2nd]

Maybe Kav was just trying to explain to simpletons like you what he was saying, Damon.

[acda999]

It's very much in line with historical precedent for a member of the supreme court to walk back rulings by simultaneously countering with a previous ruling and speaking as though there is no conflict.

[nicmart]

Does it depend upon which clerk writes the decision?

[John Tokalenko]

The pigs stopped being peace officers and became "Israel"-style enforcers, denying us our inalienable rights generations ago now.

The clowns in black dresses enabled it.

[Sequel]

Kavanaugh's first statement highlighted the fact that race may be one of several "relevant factors" (a plural). His second statement highlighted the fact that race alone is never adequate to avoid illegality.

[windycityattorney]

Kavanaugh's first concurrence led to so called "Kavanaugh" stops. Which the border patrol interpreted to mean 'if they are brown we can detain them.'

Kavanaugh had no reason to even address this topic in the second (IL) case because the issue being appealed was whether Trump properly called up the national guard. Yes, in support of ICE, but the guard wasn't enforcing federal law anyway because the district court said the president could call up the guard but couldn't deploy them. And that was the legal issue on appeal. So why would Kavanaugh feel the need to address un related topic on the emergeny docket EXCEPT to correct his previous mistake? Maybe he didn't want to be associated with "Kavanaugh" stops anymore? Because he botched the analysis the first go around?

[Incunabulum]

>But what about the Fourth Amendment right to be free from unreasonable search and seizure regardless of skin color?

Where is the part in the 4th where it talks about skin color?

'Reasonable' does not mean 'color blind'.

[Benitacanova]

No one said nothing about accents man. If you talk funny, be prepared to prove your presence.

[No One Of Consequence]

If you're within 100 miles (or more!) of the border, courts will accept almost anything as a post-hoc basis for a "reasonable suspicion," so why should perceived race/ethnicity/national origin be any different?

As Judge Weiner observed in his dissenting opinion in United States of America, Plaintiff-appellee, v. Eugenio Zapata-ibarra, Defendant-appellant, 223 F.3d 281 (5th Cir. 2000), the Fifth Circuit has accepted as a basis for reasonable suspicion that:

"The vehicle was suspiciously dirty and muddy,6 or the vehicle was suspiciously squeaky-clean;7 the driver was suspiciously dirty, shabbily dressed and unkept,8 or the driver was too clean;9 the vehicle was suspiciously traveling fast,10 or was traveling suspiciously slow11 (or even was traveling suspiciously at precisely the legal speed limit); the [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van]12 is the kind of vehicle typically used for smuggling aliens or drugs; the driver would not make eye contact withthe agent,13 or the driver made eye contact too readily; the driver appeared nervous14 (or the driver even appeared too cool, calm, and collected); the time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when "they" tend to smuggle contraband or aliens;15 the vehicle was riding suspiciously low (overloaded),16 or suspiciously high (equipped with heavy duty shocks and springs);17 the passengers were slumped suspiciously in their seats, presumably to avoid detection,18 or the passengers were sitting suspiciously ramrod-erect;19 the vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its high-beam lights on,20 or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on;21 and on and on ad nauseam."

https://law.justia.com/cases/federal/appellate-courts/F3/223/281/577743/

So why not that a person appeared suspiciously black, suspiciously white, suspiciously Asian, suspiciously hispanic, or suspiciously non-hispanic?

I guess that's why Kavanaugh took care to specify "INTERIOR immigration stops or arrests" as opposed to those that occur within the 100-mile or so from the Mexican border Fourth Amendment exclusion zone.

[windycityattorney]

+1. Good comment.