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

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.