\n<\/p>\n
O<\/span>f 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\u2019s 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.<\/p>\n Mayhem in the city streets, violence, even killings, renewed rounds of Trump\u2019s 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\u2019s most salient political issues.<\/p>\n Kavanaugh issued an unusual sole concurring opinion on 8 September 2025 in Noem v Vasquez Perdomo, staying a lower court\u2019s 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 \u201crelevant factor\u201d and \u201ccommon sense\u201d to establish \u201creasonable suspicion\u201d. Justice Sonia Sotomayor, in a blistering dissent, accused the court of legitimizing \u201cracial profiling on a massive scale\u201d. She wrote prophetically: \u201cWe 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.\u201d<\/p>\n Legal scholars were even more devastating in their analyses of Kavanaugh\u2019s opinion. His \u201cinvocation\u201d of \u201ccommon sense\u201d came \u201cat the expense of facts and evidence\u201d, Jennifer Chac\u00f3n, professor and vice-dean at Stanford Law School, wrote. \u201cNote the number of factual assertions \u2026 supported by nothing more than \u2018common sense.\u2019 I am not omitting his citations to evidence; there are no such citations.\u201d Duncan Hosie, an academic fellow at Stanford Constitutional Law Center, described Kavanaugh\u2019s claims as \u201cfactual revisionism\u201d (ie, falsehoods), \u201ca previously unrecognized form of precedent subversion that operates as a strategic tool to reshape legal doctrine while managing the Court\u2019s dwindling sociological legitimacy\u201d. \u201cAlmost every word of this is preposterous,\u201d wrote Sherrilyn Ifill, professor at Howard Law School, about Kavanaugh\u2019s opinion. \u201cWhat we have seen repeatedly are not \u2018stops.\u2019 They are grabs and kidnapping.\u201d<\/p>\n Since Kavanaugh\u2019s rationalization of what have become known as \u201cKavanaugh Stops\u201d, within the first month more than 170 US citizens were detained, \u201cdragged, tackled, beaten, tased and shot\u201d, 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.<\/p>\n The sharp criticism of Kavanaugh\u2019s 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: \u201cOfficers must not make interior immigration stops or arrests based on race or ethnicity.\u201d But Stephen Miller has paid no attention to the discreet footnote. The \u201cKavanaugh Stops\u201d have continued, lately in Texas and Maine with fatal consequences.<\/p>\n The method Kavanaugh applied to ICE abuses he also applied to Trump\u2019s tariffs in the principal dissent on 20 February in Learning Resources, Inc v Trump, in which a six-to-three majority struck down Trump\u2019s 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 \u201cfools\u201d and \u201clap dogs\u201d, but said of Kavanaugh: \u201cI\u2019m so proud of him.\u201d<\/p>\n Kavanaugh\u2019s opinion again rested on factual revisionism, citing \u201chistory, and precedent\u201d to justify Trump\u2019s unilateral action, claiming it was \u201ca traditional and common tool\u201d, and appealing once more to \u201ccommon sense\u201d. 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 \u201cmight justify most (if not all) of the tariffs at issue in this case\u201d, <\/strong>laying out a roadmap for Trump to skirt the court\u2019s denial of his unconstitutional use of emergency powers.<\/p>\n double quotation markBy the end of this session, [Kavanaugh] has clearly emerged as the chief enabler to operationalize Trump\u2019s most salient political issues<\/p>\n 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 \u2013<\/strong> 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 \u2013 all likely to be subject to new lawsuits if and when enforced.<\/p>\n Then came Kavanaugh\u2019s 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\u2019s executive order violated federal law but was not unconstitutional. His argument was a compound of \u201cfactual revisionism\u201d, historical nonsense, sophistry, illogic and political consulting. His syllabus of errors was tightly scripted:<\/p>\n 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 \u2026 If Congress amends \u00a71401(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.<\/p>\n While there was no \u201csignificant illegal immigration\u201d 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 \u2013 the Page Act of 1875 aimed at Chinese women and the more sweeping Chinese Exclusion Act of 1882 \u2013 the colonies and then the states handled \u201cillegal immigration\u201d. 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. \u201cIf the 14th Amendment framers wanted to exclude the babies of temporary visitors (people not domiciled), children of unauthorized migration, or people who \u2018owed allegiance\u2019 to another country as the dissenters assert, they would have said so. They didn\u2019t,\u201d wrote Anna O Law, constitutional scholar at Cuny Brooklyn College, and author of Migration and the Origins of American Citizenship.<\/p>\n Kavanaugh\u2019s sheer speculation about what \u201cthe Framers likely would not have anticipated (and presumably would not have intended)\u201d 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 \u201cconsequentialist\u201d illogic.<\/p>\n Kavanaugh piles on to this rubbish heap \u201cthe odd result of granting a substantial birthright citizenship benefit\u201d, based on how he conjectures the 14th amendment\u2019s 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.<\/p>\n Kavanaugh\u2019s suggestion that Trump revive his executive order by a supporting act of Congress would not \u201cpass constitutional muster\u201d 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\u2019s idea. \u201cWe can easily make it up in legislation,\u201d he said. \u201cNo long and unwieldy Constitutional Amendment is necessary!\u201d The speaker of the House, Mike Johnson, instantly echoed Trump: \u201cIf there\u2019s some legislative fix, we\u2019ll advance that immediately,\u201d 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.<\/p>\n 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.<\/p>\n Kavanaugh\u2019s 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\u2019s 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.<\/p>\n 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\u2019s guarantee of equal protection under the law \u2013 a ruling that even its author, Justice Antonin Scalia, later confessed was \u201ca piece of shit\u201d.<\/p>\n 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\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":" 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. 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