The Infamy of the “Kavanaugh Stop”

Believe it or not, there was a time when the Supreme Court’s emergency docket rulings did not regularly garner controversy; they were simply the means by which the court could consider time-sensitive legal crises, such as motions related to capital punishment. But a key feature of the Trump era is the transformation of the emergency docket into the “shadow docket”: unsigned rulings that have had a profound effect on the country. Beyond the fact that these rulings have a “heads Trump wins, tails Democrats lose” bent, they are, as Erwin Chemerinsky notes, often proffered without much in the way of jurisprudential explanation while frequently bulldozing precedent. The justices themselves may not like the term “shadow docket,” but they seem to relish operating in the shadows all the same.

But there is one instance in which a justice did attempt to explain himself in a recent shadow docket ruling, only for that justice’s reasoning to blow up nearly immediately after its first encounter with the real world: Brett Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo, in which the Supremes stayed a lower court ruling that was specifically impeding the Department of Homeland Security from racially profiling people for immigration stops. The larger court, as is its wont, failed to offer a ruling. But Kavanaugh opted to weigh in all the same. His reward is a heaping helping of infamy in the form of a specific secret police tactic that many have taken to calling “the Kavanaugh stop.”

Here’s the essential background. As The New Republic’s Matt Ford reported after the ruling in Noem was handed down, Kavanaugh’s surprise concurrence went to some pains to “minimize the impact” of a law enforcement encounter: “Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status,” Kavanaugh wrote. “If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”

As Ford noted, the law enforcement encounters that formed the basis of the case itself could hardly be called “brief.” One of the plaintiffs in Noem testified that his attempt to show valid proof of U.S. citizenship did not make the encounter any shorter, as the agents “refused to believe the validity of his California driver’s license.” As Justice Sonia Sotomayor recalled in her dissent, “The agent said the ID was insufficient, ‘grabbed [his] arm,’ escorted him to a vehicle, and drove him to a ‘warehouse area’ for further questioning.” None of that sounds at all like the quick interaction that Kavanaugh suggested was the theoretical norm. And in practice, the Kavanaugh stop hasn’t hewed to his imagined brief encounter, either.

The quintessential components of a Kavanaugh stop involve a person detained for immigration enforcement specifically, with race a certain or likely factor in the decision behind the stop—the Fourth Amendment’s protections from unlawful searches and seizures be damned. Sotomayor saw a grim future in the court’s decision: “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.”

If the news is any guide, Sotomayor’s fears are now reality. As the Chicago Tribune recently reported, Chicago resident Rueben Antonio Cruz, a 60-year-old man originally from El Salvador, was sitting with a friend in Rogers Park when “immigration officers stopped their truck and went straight after them.” What followed was a classic Kavanaugh stop: Cruz and his friend were asked for “papers” proving their citizenship. Cruz, who was not carrying such papers on his person, was then bundled into the agents’ vehicle and interrogated. Cruz was eventually let go, but not before the agents fined him $130 for “not having his papers.” The ordeal left Cruz angry: “It’s not fair because I said, let’s go to my house and I’ll show you my papers. I’m a resident.”

The Tribune notes that while federal law requires registered foreign nationals to carry proof of registration with them at all times, “prior to a second Trump administration, it was rarely enforced.” The detention drew the criticism of the ACLU’s Ed Yohnka: “America has never been a place where people need to ‘show one’s papers.’ Ticketing a lawful permanent resident—and forcing him to appear in court and pay a fine for not carrying their papers—is unnecessary and cruel.” Unfortunately, it’s likely to become commonplace as Trump’s goons, freed from legal obligations by the Supreme Court, make the Kavanaugh stop part of their daily operations.

The possibility that Trump’s ICE agents, who have effectively been given carte blanche to abuse their authority, might simply dismiss their quarry’s valid proof of citizenship appears to have not occurred to Kavanaugh. But it has definitely occurred to the jabronis snatching up brown people in American cities. In a second Kavanaugh stop detailed by the Tribune, a 44-year-old Latina woman named Maria Greeley was out for a jog when she was jumped by federal agents who zip-tied her and detained her despite the fact that she carries her passport with her at all times to prove that she was born in the United States. According to the report, agents remarked that she didn’t “look like a Greeley,” dismissed her documentation, and accused her repeatedly of lying.

One of the most obviously impeachable things about the Supreme Court is that it’s so frequently out of touch with the real world—a perhaps inevitable condition of giving nine people special robes and lifetime job security and then stuffing them inside a sepulchral building to stew in their own partisan juices with no one to answer to. Kavanaugh’s flawed reasoning may simply be the product of profound naïveté. But since this all came about in a shadow docket case in which the Trump administration asked for emergency relief in the form of the permission to racially profile people, I think it’s hardly beyond belief to think that Kavanaugh felt compelled to try to put a good spin on a reprehensible ruling.

That Kavanaugh has to own the Kavanaugh stop is cold comfort. Who knows if it’s even possible to shame or humiliate Brett Kavanaugh anyway? It’s very possible that transforming the United States into a country more reminiscent of Nazi Germany’s “Ihre Papiere bitte” era is precisely the legacy that Kavanaugh sought for himself. We’re the ones who are stuck with the consequences.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

The popular way of describing what’s going on in Washington right now is to say that on October 1, the federal government shut down as a result of Congress’s inability to pass an appropriations bill to keep it funded. Chief among the sticking points was the fact that Democrats and Republicans could not come to terms on the future of Affordable Care Act subsidies. The Republican bill did not include them; Democrats balked at signing their name to a budget that would cause skyrocketing premium costs for millions of mostly low- and middle-income Americans.

You wouldn’t be faulted if that was your capsule summary of the shutdown. It’s essentially the story to which most of the political press is sticking, and there’s nothing fundamentally untrue about it. It would appear for now, in fact, that the broad public acceptance of this state of play is boosting Democrats’ fortunes in the game of who “owns” the shutdown. CNN’s Harry Enten reported this week that voters blame the GOP more, by an average of 12 points, and he noted that historically speaking, the party blamed at the outset is who gets blamed at the end. (It probably helps Democrats’ cause that those perusing the Obamacare exchanges for plans right now are already seeing the huge spikes in premium costs.)

Still, these facts only tell part of the story. This government shutdown isn’t merely about an appropriations bill, and it’s not entirely about health care subsidies. This shutdown is actually the culmination of a much deeper dysfunction, to which blame can indeed be wholly attached to President Donald Trump and his GOP apparatchiks. But the underlying cause of the shutdown is tricky terrain for Democrats to negotiate, and it calls into question whether they can—or even should—speedily resolve it. And the key to understanding the problem begins with acknowledging that this didn’t start in October. The government shutdown began a few weeks after Trump was sworn in.

Trump’s second term is broadly defined by his monomaniacal desire to either end or fatally impair the federal government. With the help of Elon Musk and Russell Vought, the Trump administration managed to do this in the most alienating possible way. As my colleague Alex Shephard noted this week, the administration’s slash-and-burn speedrun through the civil service has been broadly unpopular. It also probably goes a long way toward making any of the GOP’s rhetoric about Democrats being to blame for this most recent shutdown harder to take seriously.

But the reason things have dragged to a legislative standstill in October is essentially because Republicans in Congress willed it to be so when they returned to Washington to rejoin Trump as devoted supplicants. Their most fateful decision in that regard? Giving up one of the legislative branch’s core functions—the power of the purse. As NPR reported, by the first week of February, Republican lawmakers had already begun to master the art of explaining away why they were happy to surrender the power to appropriate money to Trump.

I characterized this at the time as an escalation in GOP lawmakers’ expansive campaign of self-abnegation. But it has ended up being so much more. The decision to give the White House full power to decide what, when, and how congressionally appropriated money is spent has created an impasse more deep and intractable than the shutdown itself, because the question of how the conflict over Obamacare subsidies gets resolved has become impossible to answer.

Let’s think about it for a minute. The White House’s position, as advanced by Vice President JD Vance and others, is that Senate Democrats should stop filibustering the appropriations bill now, and the matter of the subsidies can be negotiated later. The problem is that it’s impossible for a reasonable person to view that offer as sincere. Sure, Congress can go through the motions: meet in committee, hash out a deal, pass a bill, and send it to Trump’s desk. Trump can even sign that bill. But none of it matters when you know that Trump is likely to simply appropriate or not appropriate that money as he sees fit through pocket rescissions.

What we have here is a fully busted appropriations process; it is impossible to have faith in anything that Trump and his Republican cronies do with taxpayer dollars, even in instances in which bills have been negotiated, agreed to, and passed. And Republicans just keep on tipping their hands that they don’t really care about restoring that faith. This week, the chief way they responded to Democrats’ demands was to threaten federal workers’ back pay, despite the law being very clear that workers are entitled to those wages once the shutdown ends. Here, Democrats should say, “If the Trump administration is willing to break faith, and the law, to not pay you now, there is no reason to believe your steady paycheck is safe under any circumstances.”

So when and how does this get resolved? Knowing of the Trump administration’s faithlessness and the physiological impossibility of him honoring any deal made on Obamacare subsidies—or anything else—it’s not clear that Democrats should even play a role in resolving the matter. As Garrett Graff wrote, “If appropriations bills are not seen as enforceable contracts, why should any Member of Congress vote to fund any part of the federal government under Donald Trump? You’re voting to provide money for lawlessness.” Having once opted to give Trump’s paramilitary forces the money to invade American cities, Democrats should not position themselves to be fooled a second time.

It’s worth pointing out that Republicans have majorities in both houses of Congress, so they can end the impasse any time they want, all on their own. I’ll admit that I do not know what Devil Magic has heretofore kept the GOP from simply nuking the filibuster and getting on with this. Perhaps they desire even the slightest whiff of bipartisan assent for Trump’s designs because of the cover it earns them from the mainstream political media, who are as desperate as ever to find the smallest scintilla of evidence that the American experiment is still working. But from here, the shutdown calculus becomes simple: If Democratic votes are what Trump and his GOP enablers need the most, they must never be provided.

According to a fresh Gallup poll this week, 43 percent of Americans regard the Supreme Court as “too conservative,” against 36 percent who feel that the Roberts court is an even-tempered administrator of justice. That 43 percent is a new high, per Gallup: “Before the court shifted to a 6-3 conservative advantage after Amy Coney Barrett replaced Ruth Bader Ginsburg in October 2020, no more than 33% had ever characterized it as too conservative.” But then, that conservative majority started doing things—like gut Roe—and disapproval followed. Don’t expect things to turn around, by the way. As Matt Ford noted earlier this week, the court is expected to take a rightward lurch during its next term.

I got to thinking about the Supreme Court this week after Brian Beutler invited the readers of his Off Message newsletter to engage in a thought exercise: If you could thwart MAGA and the rise of fascism, but only by “turning the Democrats’ ideological clock” back to 2005, would you take that trade-off? Moderating would mean a lot of ideological progress on the left would have to fall by the wayside (Democrats in 2005 weren’t robustly defending marriage equality, and were nowhere near President Joe Biden’s vision of a pro-worker economy). But the idea is tempting—and the Supreme Court looms large. I would not call the high court’s 2005 incarnation “good” by any stretch of the imagination. But during the transition from Chief William Rehnquist to John Roberts, the court came studded with justices—Anthony Kennedy, David Souter, Sandra Day O’Connor—who were willing to swing between ideological poles. Going back sure sounds like a good deal.

Alas, the world only spins forward. There’s no “moderation” button that Democrats might press to take us back to a more halcyon era. As provocative as Beutler’s thought experiment is, I’d prefer Democrats to think more deeply about the present moment—and more strategically about getting out of it. I don’t think we escape the fascism trap without Democrats who are willing to spend a lot of political capital, and I think those Democrats will have to commit themselves to some radical thinking along the way.

There is a place, to my mind, where Democrats can and probably should moderate. The big intraparty battles of the pre-Trump era revolved around whether Democrats should go big on policy or stay toward the center; here were the debates over Medicare for All, the Green New Deal, and taxes designed to soak the rich. This is, alas, not the moment to revive or promote these ideas—and I say that as a fervent supporter of them. That’s because they don’t stand a chance under this extremist Supreme Court, which must first be dealt with.

I spelled out some of my thinking on this matter back in 2024, at a time when Kamala Harris was being dogged by daily reports of her reversing herself or becoming suddenly noncommittal about policies she once supported in the years prior to her vice presidency. I was fairly sanguine about this state of affairs because the Supreme Court had, by then, entered its Enemy of Liberal Governance Era, and it was quite clear to me that the six-member conservative majority was simply going to stamp a line-item veto over anything a Democratic president or legislature did.

Under this judicial regime, things like Medicare for All are a complete nonstarter. Hell, so is any hyper-timid means-tested bullshit if five justices don’t want Democrats to succeed. As I urged at the time, conflict with “a Supreme Court that’s holding the policymaking apparatus hostage” is inevitable, and it is “not a fight [Democrats] can duck.”

All of which means that while Democrats might be able to pick and choose some avenues of moderation, the task of arresting and reversing the degradation of the Trump era will inevitably require a hard swerve toward a more radical type of political thinking—especially with regard to the Supreme Court. The polite norms around the Supreme Court have been obliterated. This should be apparent to everyone; every one of these shadow docket rulings where the majority semi-anonymously grants a would-be dictator more power to overthrow the Constitution only reinforces the fact that the high court’s age of respectability is over.

The Democrats who want to win back power in 2026, and win the presidency in 2028, need to embrace this conflict and nurture the growing public antipathy toward the Supreme Court. They will also have to do things that the Democrats of 2020—let alone 2005—dared not: Packing the court needs to be on the table. Reforms must be forcefully imposed. The justices need to be brought before Congress and explain themselves in regular reviews. And to get there, Democrats must engage in a content-creation campaign depicting the Roberts court as it truly is: a promoter of political corruption, a despoiler of the environment, an enemy of democracy, an institution that has pilfered wealth right from the people’s pockets.

I feel for Democrats facing this moment. Institutionalism has served them in decent stead in the recent past. But those institutions have been perverted in the Trump era and must be brought to heel and firmly restored to their civic purpose. There’s no purely moderate path to what should be the ideal “moderate” outcome: a restoring of balance to our civic lives.

But rather than look back to 2005 for solutions, Democrats must wind the clock back still further, to 1862, and find their purpose in this passage from President Abraham Lincoln’s second State of the Union address: “We can succeed only by concert.… The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise—with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.” The Democratic leaders of the future will be those who disenthrall themselves of the dogmas of the quiet past, and face a moment piled high with difficulty with courage and conviction.

Donald Trump was lustily booed at the U.S. Open in New York, and his excursion to one of D.C.’s despots’ club restaurants was interrupted by chanting protesters. But the opposition to the president extends well beyond the Acela corridor. As CNN’s Harry Enten noted this week, Trump’s approval rating is plummeting and he’s now “underwater on every issue”—including on crime and immigration, his supposed strengths. Across the board, Trump continues to have a “consent of the governed” problem, and it’s gotten so pronounced that former New York Times columnist Paul Krugman is wondering whether “a despised autocrat can consolidate power.”

It’s a question that Krugman ultimately leaves unresolved. “I guess we’re going to find out,” he concludes. But there’s a hint of passivity here, as though the outcome is beyond our control—which could not be further from the truth. There’s a large and growing anti-Trump movement across the United States that is just waiting for powerful allies to join them, and it just so happens that there’s a minority party in Washington that is desperate for ways to exert its power that don’t require controlling the levers of government. It’s a no-brainer for the Democrats, who can keep the public animus toward the president well stoked by turning Trump’s elite enablers and supplicants—not just in the capital but across society, from Silicon Valley to academia—into objects of opprobrium.

We’ve been over this before, but the most important thing to remember about Trumpism is that it doesn’t work as a matter of policy. He doesn’t know how to run the economy anywhere other than into the ground, and with each passing day come fresh harbingers of shocks to those mythical kitchen tables. (According to recent reports, agricultural economists believe prices for a slew of grocery staples could be set to double this winter.)

As Krugman notes, Trump is running the inverse play from the Dictators’ Guide to Consolidating Power: Instead of using his power to shore up a weak economy, Trump is taking a roaring economy and wrecking it. And it hasn’t gone unnoticed: TNR’s Greg Sargent reported on a recent poll that found that “48 percent of overall likely 2026 voters say Trump’s tariffs are hurting their own economic situation, versus only 29 percent who say they’re not having any effect and an abysmal 8 percent who say the tariffs are helping their economic prospects.”

Still, as Krugman writes, Trump is governing like he has “an overwhelming mandate to do whatever he wants,” which raises the question: How is he getting away with it? Part of the answer is that denial has become his administration’s stock-in-trade—like the hilarious claim that the president’s signature does not appear in Jeffrey Epstein’s birthday sex-crime book. But another part of the answer, Krugman continues, “is anticipatory compliance on the part of members of the elite, from corporate CEOs to university presidents to law partners.”

Let’s linger on this a moment: Krugman is correct to note that one of the key forces enabling Trumpism is this grotesque collection of oligarchic weirdos that everybody hates: Big Law goons, Ivy League ivory tower types, corporate predators, and the tech-bro billionaire set. While some of these supplicants are more willing than others, they’re also the only ones receiving—or hoping to receive—some tangible benefit from Trump. Whether it’s Trump’s Silicon Valley dinner party guests or the university president who tried to cut a deal, all of these elites are operating from the same premise: “Maybe if I’m nice enough to Trump, he’ll let me keep the money.”

But the salient point is this: In the not-so-recent past, it would be the GOP endeavoring to paint Democrats as the captive party of America’s economic and cultural nobility. Now Trump has embraced all of these political albatrosses as his boosters. And as fortunes decline for you and me, it’s these already uber-privileged members of society who are staying whole—or getting ahead. The only people for whom Trumpism works, in other words, are the same sort of people who rigged the system in their favor in the first place. The only thing that’s changed is that the new mob boss is demanding a bigger cut.

It may be that the same forces that are enabling Trumpism could enable the opposition to Trumpism, provided that Democrats lose their risk-averse ways and demonize the elites that are now at Trump’s beck and call. And while it’s true that some have bent the knee more readily than others, we must have the stomach to castigate Trump’s allies no matter how willingly they came to his side. For my part, it’s OK with me if Democratic messaging included the line, “While Trump’s Harvard cronies were cutting deals, the cost of your groceries has doubled.”

There are no allies for Democrats to be found in Trump’s teeming hive of enablers. Anyone who might serve the ends of democracy and the rule of law has, by now, explicitly announced themselves as having taken that side. As Jonathan V. Last notes, “Any institution not explicitly anti-Trump will eventually become useful to Trump.” One day, we might need to have a conversation about whether some of these people or institutions should receive a path back to respectability after violating the social compact on behalf of a wannabe fascist strongman. But that’s not the pressing business of the day.

For now, brave Democrats can and should implicate and vilify those who have abetted Trumpian misrule and have, by extension, reaped the fruits of its poisonous economic tree. It may be that one of the keys to denying Trump long-term power is to foment the public’s ire at the company he keeps, paint the whole lot as crooks and brigands who are looting the proceeds of the public trust. The burgeoning anti-Trump movement in the streets will be cheered to hear from some political allies who are promising to name the villains of the Trump era and to crush them in whatever era comes next.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

As Donald Trump’s goon-squad occupation of the nation’s capital wends its way into its third week, the president is already eyeing the next Democratic stronghold he’d like to strangle with his bruised hands in the name of “fighting crime.” Among the municipalities facing the mad king’s wrath is Chicago, which has loomed in far-right lore as some kind of Third World hellhole. While we wait for many Democratic leaders and media elites to take Trump’s authoritarian spree seriously, TNR editor Michael Tomasky this week urged Illinois officials to steel themselves for what’s to come. “Okay, JB Pritzker,” he wrote, “you’re up.”

It didn’t take long for the reply to come. In a Monday afternoon news conference, Illinois’s Democratic governor joined a slew of state leaders speaking out about Trump’s plan to deploy troops to Chicago. Pritzker has, over the past year, begun to cement his national profile ahead of what many presume to be a presidential run in 2028. He has firmly planted himself in the same “fighter” lane as California Governor Gavin Newsom—the better to distinguish himself from, say, whatever it is that Michigan Governor Gretchen Whitmer thinks she’s been doing lately.

Pritzker ended up being the headline figure of that Monday news conference, thanks to the simplicity and directness of his message. “Mr. President, do not come to Chicago,” he said. “You are neither wanted here nor needed here.” He offered some satisfying digs at the evident decline of Trump’s mental faculties. He hit many of the right notes for someone who wants to establish himself as a leader of a dissident movement. But Pritzker saved his best for last, when he promised to take the fight against Trump a step farther than most Democrats have allowed themselves.

Finally, to the Trump administration officials who are complicit in this scheme, to the public servants who have forsaken their oath to the Constitution to serve the petty whims of an arrogant little man, to any federal official who would come to Chicago and try to incite my people into violence as a pretext for something darker and more dangerous: We are watching and we are taking names.

This is where Pritzker has leveled up over his fellow Democrats, by promising a future of accountability and retribution for the destruction Trump and his minions are doing to the constitutional order and our individual freedoms. As I wrote back in May, the Trump White House and the GOP are no longer a political party by any definition; rather, they are a sort of criminal syndicate with an extensive portfolio of white collar crimes, violent offenses against our civil rights, and an ongoing sort of imposed cultural tyranny that is killing off the well-paying jobs of the future by decimating academia, and literally sparking public health crises at home and abroad through the Lysenkoism of key administration figures like Robert F. Kennedy, Jr.

As I noted at the time, “There is a certain necessary logic to what has to follow corrupt misrule of this kind: tribunals, trials, punishment, prison, and the running to ground and defunding of the entire Trump syndicate.” The only thing we were lacking then was an ambitious political figure who was willing to say that they were ready and willing to make accountability a key plank in their platform. Pritzker has made a timely arrival.

As Discourse Blog’s Rafi Schwartz points out, this isn’t the only uniquely consequential aspect of Pritzker’s speech. The Illinois governor—channeling the feelings of so many who’ve forewarned of what was to come in a second Trump term—told those assembled, “If it sounds to you like I am alarmist, that is because I am ringing an alarm, one that I hope every person listening will heed, both here in Illinois and across the country.”

Pritzker’s willingness to straightforwardly announce the existence of a crisis with “no caveats” and “no conditionals,” Schwartz writes, helps to “[neutralize] the latent anxieties of those worried about coming off as unduly panicked or oversensitive to the political realities around us.” In short, Pritzker allows those so inclined to finally grant themselves the permission to see the fascism that’s on the march, and speak of it out loud.

In the same way, I think that Pritzker has kicked open a door to an alternate future: One in which the restorative work of post-Trump patriots involves accountability for criminals and reparations for the people they’ve harmed. The taking of names and the doling out of punishments: This is now part of the larger political discussion; this is now part of the Democrats’ intraparty debate about What Is To Be Done. By including this as part of his political ambition, and broadly suggesting it may be the major goal of some future Pritzker administration, he allows us to imagine this future and have a hand in creating it.

And it sure sounds like Pritzker wants to put his hands to the task right now. “If you hurt my people,” he said, “nothing will stop me, not time or political circumstance, from making sure that you face justice under our constitutional rule of law.” In a week where Beltway Democrats passed their time pointlessly debating whether or not they were using words like “food insecurity” too much, and congratulating each other for calling the D.C. occupation a “stunt” or a “distraction,” hearing a Democratic politician speak in plain English is pleasingly bracing. These are, indeed, encouraging words to hear after Democrats long implored us to “look forward, not backward” and allowed misrule to go unpunished, thereby paving the road for Trump’s fascist second act.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.