Of the conservative justices on the supreme court, Clarence Thomas and Samuel Alito have in the current session voted most consistently, at 89 and 88%, to support Donald Trump in his cases, according to the Wall Street Journal. Yet perhaps the most influential justice to advance key parts of Trump’s radical agenda has a slightly lower rating at 76%, and performed not so much by billowing lofty abstractions of originalism and textualism, but instead by contriving an assortment of glib schemes at justification.
Mayhem in the city streets, violence, even killings, renewed rounds of Trump’s threats and shakedowns around the world through damaging tariffs, and chaos within the Congress around birthright citizenship, all of which helped fracture the divided Republican leadership on the eve of the midterm elections, have followed the opinions issued by Brett Kavanaugh. By the end of this session, he has clearly emerged as the chief enabler to operationalize Trump’s most salient political issues.
Kavanaugh issued an unusual sole concurring opinion on 8 September 2025 in Noem v Vasquez Perdomo, staying a lower court’s temporary restraining order that had restricted ICE from targeting individuals based primarily on race, language or occupation. Kavanaugh stated that stopping people based on ethnic appearance, speaking Spanish and laboring at certain jobs was a “relevant factor” and “common sense” to establish “reasonable suspicion”. Justice Sonia Sotomayor, in a blistering dissent, accused the court of legitimizing “racial profiling on a massive scale”. She wrote prophetically: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.”
Legal scholars were even more devastating in their analyses of Kavanaugh’s opinion. His “invocation” of “common sense” came “at the expense of facts and evidence”, Jennifer Chacón, professor and vice-dean at Stanford Law School, wrote. “Note the number of factual assertions … supported by nothing more than ‘common sense.’ I am not omitting his citations to evidence; there are no such citations.” Duncan Hosie, an academic fellow at Stanford Constitutional Law Center, described Kavanaugh’s claims as “factual revisionism” (ie, falsehoods), “a previously unrecognized form of precedent subversion that operates as a strategic tool to reshape legal doctrine while managing the Court’s dwindling sociological legitimacy”. “Almost every word of this is preposterous,” wrote Sherrilyn Ifill, professor at Howard Law School, about Kavanaugh’s opinion. “What we have seen repeatedly are not ‘stops.’ They are grabs and kidnapping.”
Since Kavanaugh’s rationalization of what have become known as “Kavanaugh Stops”, within the first month more than 170 US citizens were detained, “dragged, tackled, beaten, tased and shot”, according to a ProPublica report, while through July of this year, 32 American children have been detained, 31 people have died at ICE detention camps, six people have been shot and killed, including two US citizens, Renee Good and Alex Pretti in Minneapolis, and in July 2026 two men who were not the actual targets ICE agents were seeking were killed.
The sharp criticism of Kavanaugh’s opinion apparently embarrassed him. In an unrelated case, Trump v Illinois, in December 2025, Kavanaugh inserted a non sequitur as an obscure footnote repudiating his previous language. Now he wrote: “Officers must not make interior immigration stops or arrests based on race or ethnicity.” But Stephen Miller has paid no attention to the discreet footnote. The “Kavanaugh Stops” have continued, lately in Texas and Maine with fatal consequences.
The method Kavanaugh applied to ICE abuses he also applied to Trump’s tariffs in the principal dissent on 20 February in Learning Resources, Inc v Trump, in which a six-to-three majority struck down Trump’s claim that he had the absolute power to impose tariffs at will under the International Emergency Economic Powers Act (IEEPA). Trump angrily called those who ruled against him “fools” and “lap dogs”, but said of Kavanaugh: “I’m so proud of him.”
Kavanaugh’s opinion again rested on factual revisionism, citing “history, and precedent” to justify Trump’s unilateral action, claiming it was “a traditional and common tool”, and appealing once more to “common sense”. Kavanaugh had in fact invented an imaginary historical pattern. No president before Trump had used IEEPA in its 49-year history to levy broad tariffs. Kavanaugh distorted the definition of a tariff, not as an import tax whose constitutional power to assert lies with the Congress, but rather a weapon of national security and foreign policy that belongs to the executive. Then Kavanaugh engaged in highly unusual and borderline improper speculation about other non-litigated economic and trade statutes that “might justify most (if not all) of the tariffs at issue in this case”, laying out a roadmap for Trump to skirt the court’s denial of his unconstitutional use of emergency powers.
double quotation markBy the end of this session, [Kavanaugh] has clearly emerged as the chief enabler to operationalize Trump’s most salient political issues
Trump announced within hours his workaround: a 10% global temporary import surcharge using section 122 of the Trade Act of 1974, which on 7 May the US court of international trade struck down as illegal. More recently, Trump has threatened further tariffs – a 25% tariff on Brazil, 100% tariffs on Britain and European nations that enforce digital services taxes against US tech companies, and a sudden punitive 50% tariff on most Canadian goods – all likely to be subject to new lawsuits if and when enforced.
Then came Kavanaugh’s coup de grace of the session, his strange dissent in the birthright citizenship case on 30 June, Trump v Barbara, in which he stated that Trump’s executive order violated federal law but was not unconstitutional. His argument was a compound of “factual revisionism”, historical nonsense, sophistry, illogic and political consulting. His syllabus of errors was tightly scripted:
double quotation markFirst, significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States … If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.
While there was no “significant illegal immigration” as currently understood before 1868, chiefly because there were no federal legal restrictions, the Trump administration has invoked the Alien Enemies Act of 1798 for its policy of mass deportation. And before the first major federal restriction laws – the Page Act of 1875 aimed at Chinese women and the more sweeping Chinese Exclusion Act of 1882 – the colonies and then the states handled “illegal immigration”. The idea of illegal immigration was quite familiar to the framers of the 14th amendment, who openly discussed Chinese and other immigrants in connection to birthright citizenship. “If the 14th Amendment framers wanted to exclude the babies of temporary visitors (people not domiciled), children of unauthorized migration, or people who ‘owed allegiance’ to another country as the dissenters assert, they would have said so. They didn’t,” wrote Anna O Law, constitutional scholar at Cuny Brooklyn College, and author of Migration and the Origins of American Citizenship.
Kavanaugh’s sheer speculation about what “the Framers likely would not have anticipated (and presumably would not have intended)” is mind reading in a time machine about a nonexistent legal category projected forward. Based on a fantastical fiction, he has reverse-engineered the originalist method into parody. His reasoning, such as it is, is an example of the well-known formal fallacy of arguing backwards from consequences, or “consequentialist” illogic.
Kavanaugh piles on to this rubbish heap “the odd result of granting a substantial birthright citizenship benefit”, based on how he conjectures the 14th amendment’s framers would have reacted to their own constitutional creation. He guesses they would have shared his opinion and were already thinking about sorting out classes and castes of immigrants, even though they were deliberate and definitive in establishing a universal right. That they carved out two narrow exceptions, for children of foreign diplomats and of Native American tribes not taxed, showed the care they took. They purposely included, as a matter of constitutional rights, those very categories of immigrants Kavanaugh bizarrely speculates they would have excluded.
Kavanaugh’s suggestion that Trump revive his executive order by a supporting act of Congress would not “pass constitutional muster” as he insists it would. It should be elementary that a legislative bill cannot void the 14th amendment as properly understood, even by a majority on the current court. But, predictably, within minutes, Trump hailed Kavanaugh’s idea. “We can easily make it up in legislation,” he said. “No long and unwieldy Constitutional Amendment is necessary!” The speaker of the House, Mike Johnson, instantly echoed Trump: “If there’s some legislative fix, we’ll advance that immediately,” he chimed in. And a bill was proposed that has no chance of ever being enacted by the Congress, but that if it were would be struck down under the recent court ruling.
With his grab-bag of gambits, Kavanaugh mostly manages to avoid the more elaborate pretensions of other conservative justices, their conceits of originalism and textualism. He gets straight to the heart of achieving the desired political result. The conclusions of his opinions, after a bit of legal artifice, read like the political memos that they are. He offers a certain kind of cleverness that relies on sleight of hand, locates the cynical loophole, invents references if any at all, but which implodes to its hollow core upon examination.
Kavanaugh’s controversial nomination in 2018 centered around allegations of high school sexual misconduct that he denied. In the uproar, his apprenticeship as a staffer was largely overlooked. He worked as an associate special counsel for Ken Starr, whom he convinced to launch an investigation into the suicide of Clinton White House deputy counsel Vince Foster, the subject of myriad rightwing conspiracy theories, after the previous special counsel had already issued a report attributing Foster’s death to his untreated clinical depression. That Starr report wound up affirming the original report, but in an effort overseen by Kavanaugh dragged out the bogus inquiry for three years of political exploitation.
As one of the lawyers working for the George W Bush campaign in the Florida contest of 2000, along with the young John Roberts and Amy Coney Barrett, Kavanaugh advanced the notion that because counties counted votes differently, the vote count as a whole should be halted. This became the basis for the arbitrary Bush v Gore decision, an apotheosis of partisanship and blatant corruption of the 14th amendment’s guarantee of equal protection under the law – a ruling that even its author, Justice Antonin Scalia, later confessed was “a piece of shit”.
Now, wearing the black robe, Kavanaugh charts roadmaps for Trump on how to work around adverse decisions and present ever more sly cases in the future. Kavanaugh acts as though he is in an ex-officio capacity to the administration’s legal staff writing option memos. The gamester has matured into the justice of the supreme court of counsel to Trump. That is something rarer to find, and far more powerful, than the next Roy Cohn.
