Supreme Court Justice Brett Kavanaugh has appeared to reverse his earlier stance allowing apparent ethnicity as a factor in immigration stops. In a recent footnote, he stated that race and ethnicity cannot be considerations in such actions. This comes amid criticism over so-called 'Kavanaugh stops' leading to racial profiling.
In September 2025, Justice Brett Kavanaugh authored an opinion in the Vasquez Perdomo case, stating that Hispanic residents' "apparent ethnicity" could be a "relevant factor" in federal agents' decisions to stop them and demand proof of citizenship. This ruling was quickly adopted by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), resulting in widespread stops of Hispanic individuals based on race, often involving excessive force and detention until legal status was proven. Law professor Anil Kalhan coined the term "Kavanaugh stops" for these encounters, which gained traction as reports emerged of brutal treatment, including against U.S. citizens who asserted their legal status.
Kavanaugh had described these as "brief investigative stops," with lawful residents released "promptly." However, evidence presented in courts showed agents engaging in prolonged torment and detention based solely on ethnicity.
On December 23, 2025, in a concurrence to the Supreme Court's decision blocking President Donald Trump's deployment of the National Guard—a case unrelated to immigration stops—Kavanaugh included a footnote walking back his position. He wrote: "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."
This directly contradicts his September assertion that ethnicity could be a factor, though Kavanaugh did not acknowledge the shift, instead claiming the law was "longstanding and clear."
Podcast hosts Dahlia Lithwick and Mark Joseph Stern of Slate's Amicus discussed the footnote as a tacit retreat. Stern noted: "Immigration stops can’t be based on race? What a concept! A concept that you, Brett Kavanaugh, rejected just a few months ago."
Lithwick added: "It’s the icing on top of the Christmas cake that Brett Kavanaugh... gave himself the gift of forgiveness for his notorious 'Kavanaugh stops' opinion."
They criticized the move as insufficient, pointing to CBP Chief Greg Bovino's statements endorsing racial profiling and requiring proof of citizenship from everyone. The hosts argued that Kavanaugh's original opinion unleashed a wave of violent racial profiling, and this footnote changes little without a direct apology or reversal.
