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Justice Sonia Sotomayor is taking direct aim at “Kavanaugh stops,” the race-based detentions by Immigration and Customs Enforcement and Customs and Border Protection that Justice Brett Kavanaugh and the Supreme Court’s conservative supermajority blessed last year. At an event on Tuesday, Sotomayor rebuked Kavanaugh for his now-notorious opinion declaring that immigration agents may detain Latinos based, at least in part, on their “apparent ethnicity.” Kavanaugh was attempting to justify his support for a 6–3 Supreme Court decision effectively green-lighting overt racial profiling in immigration enforcement. Critics quickly dubbed these detentions “Kavanaugh stops,” thus forever associating the justice with the persecution of Latinos. Reflecting on his opinion this past Tuesday, Sotomayor stated: “I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.”
On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed Sotomayor’s blunt, public reproach of her colleague and the tactical considerations that may lie behind it—especially in light of a brand-new legal challenge to “Kavanaugh stops” just filed in New York. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: Justice Sotomayor usually goes out of her way to compliment her colleagues when she does these talks, including those on the right. She focuses on collegiality and how they all respect each other. She’s made headlines for lavishing praise on Clarence Thomas in the past. So why did she aim this dagger at Kavanaugh?
Mark Joseph Stern: Well, I think this was almost certainly intentional and preplanned. When Justice Sotomayor does these public events, she generally seems to plant questions with her interlocutor that will allow her to make a statement. She knows she’s going to make news. So no one should think this was just Sotomayor riffing off the cuff. I believe it’s something she wanted both us and Kavanaugh to hear.
The same is probably true of her comments at a different event—later in the week—on Thursday, when she said of her colleagues: “I dare say that with virtually all of them, I certainly have a civil relationship. And with many of them, I think I dare say that I have a friendship.” For years, she used to say the Supreme Court was a “family” and that they all got along great—they were all friends who worked together, ate together, and liked each other. She’s not saying that anymore. If she has a civil relationship with “virtually” all of them, that means not all of them. And based on her remarks, it’s not difficult to guess with which justice she might not have a civil relationship: Brett Kavanaugh.
When you look at the substance of what she says, she doesn’t just say he got the law wrong. She wants him to know what he doesn’t understand. She said: “Those hours that they took you away, nobody’s paying that person. And that makes a difference between a meal for him and his kids that night and maybe just cold supper.” And he doesn’t understand that because his parents had white-collar jobs. He doesn’t have that life experience. He doesn’t know what it’s like to be a day laborer who gets scooped up by masked agents outside a Home Depot then held for hours.
That’s a different kind of critique. But she also said that she wrote her dissent “not as a Latina who’s insulted,” but to convince Kavanaugh he was breaking with precedent. So this is just an interesting turn for her. She’s not just saying: I’m not talking as a Latina who’s pissed off because he doesn’t know what he’s wrought on the people of my community. She’s saying that he maybe wants to think again. That does lead me to question whether she’s perhaps trying to subtly convince him that he should change his mind. She may actually be strategically laying the groundwork for him to think about doing this right next time.
It’s almost like we’re seeing interpersonal deliberations that usually go on behind the curtain boiling over into public talks, which is extraordinarily unusual. I do think she’s trying to give Kavanaugh a second bite at the apple. She didn’t just say: He’s wrong and he’s bad. She suggested that he just didn’t really understand what was involved with these detentions because he’s sheltered and privileged. And that leaves open the possibility that if he did understand what they entailed, he would understand that precedent doesn’t actually allow them. So in the future, that precedent could be restored.
That would be a smart play, because Kavanaugh himself has indicated that he might regret his “Kavanaugh stop” opinion. In December’s Trump v. Illinois—which was not directly about this issue—he dropped a random footnote declaring that immigration stops must be “brief” and “based on reasonable suspicion of illegal presence,” and cannot be “based on race or ethnicity.” That’s not what he said in his earlier opinion, when he insisted that it’s OK for federal officers to make immigration stops based on race or ethnicity. So I think that he’s given a sign that he might be willing to walk that back. And maybe Justice Sotomayor is taking him up on it. I don’t know why this conversation didn’t happen over a collegial lunch at the court, but I’m glad it didn’t, because Kavanaugh is pretty responsive to public pressure. We know he feels the need to protect his reputation and defend his votes. I wonder if Justice Sotomayor is trying to signal that the pressure is working and he’s changing his mind.
It could be that she didn’t bring this up over lunch at the court because the way to talk to Kavanaugh is through the people, right? Because he craves their approval. So she’s laid out the steps: One, he had absolutely no idea what he was talking about in terms of what those stops are like. Two, he’s privileged and he has never experienced working by the hour and what those losses are like. Three, now that he’s disgraced himself and severely harmed people around the country, he’s got a chance to redeem himself. It’s all of those moves. She’s being tactical in a way Justice Kagan is often credited with.
That takes us right to a new class action lawsuit filed this week by immigration advocates seeking to end “Kavanaugh stops” in New York. It argues that ICE and CBP are unconstitutionally detaining people “based solely on their perceived Latino ethnicity” and asks for a classwide injunction against racial profiling in immigration enforcement throughout the state. This is essentially an opportunity to give Kavanaugh a vehicle for a do-over and a chance to correct an opinion that I think he genuinely had no idea would inflict such enormous harms, or would look this bad for him.
That’s right, and it also forces him to confront those harms head on. One plaintiff in this suit, who lives here lawfully, thought he was being robbed because an unmarked black SUV almost hit him in a crosswalk, then agents leapt out and kidnapped him. He was illegally detained for two days. Another plaintiff was abducted while driving his daughter, a minor, to school, and the agents left his terrified daughter alone in the car when they took him away. These facts are nauseatingly familiar at this point. And the suit cites Kavanaugh’s previous effort to walk back “Kavanaugh stops” to tell him: You said immigration stops can’t be based on race or ethnicity. Well, every single day, New York residents are being detained simply because they’re Latino. That is the policy of ICE and CBP under Donald Trump. And this suit is an opportunity to make that stop.
If the lower courts grant this injunction, the Trump administration will almost certainly take it to SCOTUS. And it really does fold in nicely with Justice Sotomayor’s possible pressure campaign on Kavanaugh. This could be the case that undoes some of the harms of “Kavanaugh stops” and imposes real, enforceable limits on racial profiling by immigration agents. We need that badly, because right now in this country, you are subject to being stopped, arrested, abducted, and imprisoned if you look Latino.
