Thank you, all, for tuning into my live video with Drexel University School of Law Professor
— who coined the term “Kavanaugh stop” in the aftermath of the U.S. Supreme Court’s September 8 decision allowing the Trump administration to racially profile Latinos in low-wage jobs. I’ve written about the decision repeatedly, most recently on Sunday, so I decided it was time to talk with Kalhan about the “Kavanaugh stop,” the Supreme Court, accountability, and more.
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A lightly edited transcript follows.
LAW DORK: We’re starting off the week with the very low-profile matter of how we’re dealing with Supreme Court opinions and orders that are just changing the way that the Trump administration is operating on the ground, across the country in its mass deportation raid efforts. So to get started, we have the benefit of the by-happenstance creator of the “Kavanaugh stop” terminology, Professor Anil Kalhan, who is at Drexel University, Professor of Law. When the Supreme Court’s order came down on September 8, I was immediately almost flummoxed by some of the contents within within Justice Kavanagh’s concurrence, and I wrote about it that day, and have now written about it twice since, and you obviously also jumped into the discussion. For starting things, what was it that drew you to this order when it came down?
ANIL KALHAN: First of all, thanks for having me join you to talk about this. When the order came down, I think I had a very similar reaction to a lot of people. There was a lot then that folks were writing about the case. This was in early September. The lower court litigation all happened, obviously over the summer, and I’ve been following it as somebody who teaches and writes about immigration law, but you know, there’s actually a lot to follow these days in the field. So it’s been very much a moving target in terms of thinking about how deeply to pay attention to the various things that are happening. And you know, there’s obviously also just been a flood of shadow docket, emergency docket, what are we calling it these days? Interim docket
LAW DORK: Interim docket, Kavanaugh wants.
KALHAN: Yeah, we’ve got to make sure that we don’t offend him. I’ve had the same reactions that I think a lot of critics have had in terms of the rule of law concerns about sort of the consequential nature of some of these decisions that have been issued, a decent number of them in the immigration context, but certainly by no means exclusively. And you know the lack of explanation, all the things that many observers have reacted to. So I had that reaction again. I mean, in some ways, I can predict the reaction that I’m going to have, as all of us probably can when you see, okay, this is the kind of adjudication that’s taking place, right? Here you have a district court judge issuing a very detailed fact-based order, prohibiting, in very careful ways, actually, defining what can the government do and what it can’t do.
LAW DORK: I’ve talked about it at length, but just like to lay out it was, it was specifically that they may not rely solely on one any combination of four factors, apparent race or ethnicity, speaking Spanish or speaking English with an accent, presence at a particular location, eg, bus stop, car wash, tow yard, day laborer pickup site, agricultural site, etc, or the type of work one does. And that was the, the, the extent of what she had referred to as the Fourth Amendment TRO.
KALHAN: So, that decision was made in a TRO posture, but but based on factual findings and sort of consideration of evidence in some detail. The Ninth Circuit, on an expedited basis, also issued a very detailed opinion probably made their their their summer. They had to work hard probably to get an opinion out. It was also quite lengthy and detailed. And then the Supreme Court just drops a paragraph saying — with two lower court opinions going against the government, you would think in fact that sort of would make a higher hurdle for the government to overcome. [But], just issues this paragraph, and you know, a lot of people had written about it. Sherrilyn Ifill had written about it. Madiba Dennie, Jennifer Chacon, there’s a whole bunch of people had written stuff. And I think a lot of people then were talking about it. And, obviously, Justice Kavanaugh wrote this concurring opinion, right, which, which nobody else joined. Right and and Madiba said, well, in Madiba Dennie in her piece said, Well, no other justice joined it. Maybe they reasoned it was better to remain silent and be thought a racist fool than to speak as Kavanaugh did and remove all doubt. Right? So it was striking, he’s chosen to write this opinion with no factual citation in a lot of places, this very sort of blithe and cavalier discussion about the [how] if an individual is legally present, the stop will be brief, and it’s a minor inconvenience. And you know, so for several weeks, I had the same reaction that a lot of folks had, which is — and I was just sort of a consumer — and then, and yeah, there was a lot of discussion on Bluesky and other social media about justice Kavanaugh himself in this context.
LAW DORK: And it was just like two words in it. But I think that — or I guess, altogether five words — but I think it did sort of stick in people’s craw, the “not to mention common sense.”
KALHAN: Right.
LAW DORK: It was totally — he said, “Under this Court’s precedents, not to mention common sense, those circumstances, taken together, can constitute at least reasonable suspicion of illegal presence in the United States.” Putting aside whether or not it was true under the court’s precedents, which many people have written since why he was wrong on that front. It was this, this totally unnecessary, “Duh,” statement that he added into it that I think for those of us who have been encouraging the justices to write when they are making decisions on the shadow docket, it was like, “What are you doing here?”
KALHAN: Yeah, this is not quite what I think folks were encouraging them to do. And it’s that sort of invocation was — I mean, in some sense, it’s entirely consistent with the way in which the Court has approached immigration policing cases — and Jennifer Chacon wrote a great piece about this — for a long time, but it also has a particular way of just running into the reality that many people experience, and that in this day and age, many people can see because so many then in the days and weeks after that decision, there were so many examples of — I mean, you know there were examples in the case itself if you actually read the record. And Justice Sotomayor helpfully pointed out some of the examples. Your “common sense” is not actually consistent with the record in this case, but it’s also not consistent with the reality that people were able to observe in videos and other documented incidents, whether that’s with respect to the brief and minor inconvenience, or even with respect to the standing question that he tried to sort of assimilate the Lyons notion that the likelihood of your being subjected to the chokehold again is not high enough. Well, in fact, actually, the district court made findings about that, and a number of these examples are people who have, in fact, been subjected to these practices more than once.
LAW DORK: And so a little more than two weeks after that decision comes down, there is sort of a follow on lawsuit that was filed in DC and Aaron Reichlin-Melnick, who is great immigration expert who we all rely on for his expertise, at the American Immigration Council, he posts a fact from this new lawsuit about the lead plaintiff, who is a Latino man has been here for 24 years, grabbed off the street by federal agents who didn’t even ask about his status, detained overnight and only released once a supervisor realized he had been illegally arrested, which then leads to your quote repost, and you say, “What we might refer to as a ‘Kavanaugh stop.’” A 9:08am post that’s now been liked 5.6K times, reposted 1.6K times, and “Kavanaugh stop” is now a matter of discussion across the media. What were you thinking when you wrote that?
KALHAN: Yeah, it’s funny because, you know, mentioning to Leah Litman, she’s like, you know, you spend dozens and dozens of hours on law review articles, sometimes picking your words very carefully, going back and forth with editors and colleagues about it. And then this thing has now been, of course, invoked and referenced more than anything I’ve written in my entire career, probably. What was I thinking? I wish I could say that I had given it the same amount of careful thought that I would give to the scholarly work that I do. And I didn’t.
I just said — it’s a Saturday morning, and I saw this, and I had been reading and thinking about the frustration that is cumulative for many of us about the role that the Supreme Court is playing. It wasn’t like the product of enormous thought. I can tell you what lies behind it, reconstructing the the thought process. One of the things that is just sort of so frustrating about the discourse around the Supreme Court, sometimes, if you’re not a lawyer, this is sometimes more true, is that the part of the use of the shadow docket, what it does, is it sort of has a way of evading accountability. Because, of course, they’re not, in fact, laying out their reasons, and that then sort of masks the ways in which the Court and the judiciary generally are co-creators of what other branches do.
There’s many conversations to be had, of course, about the immigration enforcement practices themselves. But that actually wasn’t what I was directing this to. I was directing this to the Supreme Court itself and the concerns about judicial accountability in a situation where — this is the rare example, maybe, where, in fact, not the only example, obviously, but one of the rare examples where one of the justices chooses to actually say something. It’s like, “Okay, well, you’re co-creating what we all are experiencing. You’re doing so in a way that is, in fact, at odds with reality. You should own it.” And you know, in some ways, like he, having spoken, — there’s obviously a majority on the court that is no less responsible in some ways. But, okay, you want to speak to this, you also have accountability. And these are Article III judges who serve for for life tenure with good behavior. That’s that doesn’t mean that we can’t actually have conversations about judicial accountability in any number of ways.
LAW DORK: No, and I think that’s what spoke to me about it. We have spent so much time talking about the shadow docket, talking about it, and it seemed like it really hit perfectly at that [question]: How do you actually apply accountability? And this was an example that — we talk about all of the aftermath with the Coach Kennedy case and all this stuff about, “oh, you make up fact patterns and and create a reality that enabled you to have a decision, find standing, whatever legal thing it is,” but this was a perfect scenario in which, because it was on the shadow docket, there were immediate effects. It did apply to other cases. It was right out there, and you were able to take his assertion of reality, and day by day, show what that looks like, as opposed to the video that people are showing, the arrests that that journalists are writing about, and it did become, very easily, something that somebody who hasn’t read a 45-page law review article about immigration enforcement policies can understand what is being talked about here. That weekend, it was my birthday weekend, so I was a little a little behind the curve, catching it, and when I started seeing it, I was starting to see people already talking about it. What was that? I mean, you already said it’s sort of like, “oh, this is the thing people are latching on to.” What have you been paying attention to in the way that people have responded to this?
KALHAN: So there’s a few things that are striking to me. The first one is one that you’re that you’re describing. The power of this, I think, is just sort of the making it a sort of kind of common sense. It’s sort of like a counter-common sense in some ways. I’ve been struck by the number of people who I’ve seen using this phrase, probably not knowing sort of where and how it came to them, which is great, actually. It’s not necessarily the way, academics, or legal academics, are sort of acculturated to think about things, but that’s great. And non lawyers. To create a sort of kind of sense, as I was saying before, that the the judiciary is a co-creator of the various practices that that people are reacting to. The moment that was most striking to me — there were explainers in mainstream media outlets, which was striking. Very early on Chris Hayes did a segment on his show.
But the moment that was striking to me is when the Senate Judiciary Democrats used the phrase. Because one of the things that I think has been a source of frustration, at least, my perception, is a source of frustration for for a number of people who’ve been pushing for judicial accountability or court reform in various ways over a number of years is that there hasn’t been much of an appetite — never mind, for any prescriptions, but — to actually have a discussion that, in fact, is focusing attention on the Judiciary. And then the Senate Judiciary Democrats started to use this phrase, I think last week or maybe the week before. That was striking. I think it’s great. I’d like to see more of that. I’d like to see, not necessarily, that phrase. That’s not as important as having more of a mainstream political elite conversation about judicial ownership or co-ownership of the various things that are happening. I think that there has been certainly some appetite to criticize the Trump administration and very in all kinds of ways, and to go to court to challenge them. I’ve seen a little bit less from Democratic elected officials about what happens when you lose those lawsuits? Is it to just throw up your hands and give up, or do you, in fact, actually have some kind of ongoing conversation in which your political program includes both the elected officials — executive and congressional officials— who are responsible for these actions, as well as the judicial actors who are also part and parcel of those those actions.
LAW DORK: When I was watching how this was going and how people were addressing — one of my old editors knows, I love anniversaries and stuff. So, one month after the decision came out, and when it did feel like it was still being discussed, I did use one of the examples, Frank Miranda in Portland, who was arrested and struck from behind and was born in California, said he didn’t know what they were talking about when they said he had “overstayed” and sent that inquiry to Justice Kavanaugh. And said, “Do you have any comment on this, and does it make you rethink what you wrote and and then I said, are you aware that people are referring to these as Kavanaugh stops?” I know that it got to chambers and that he hasn’t responded. I then [sent] a second one when Maria Greeley, who was the Chicago worker, who was was told that she didn’t look like a Greeley when she was detained, and literally said she carries papers with her because she’s afraid of the fact that people are going to say essentially that. I asked about that. And then, of course, two days later, ProPublica came out with this extensive report about the more than 100 — some of them were arrests as a part of enforcement, but that there had been at least 50 US citizens arrested by ICE for immigration-related detentions and I asked about that. I think that idea — that you can take, when questions arise about what the justices have done, there’s no reason why, as a journalist, I should treat what he is written as sacrosanct and not able to be questioned. He doesn’t need to answer. But that doesn’t make the question illegitimate.
KALHAN: No, not at all. And, how you think about accountability when somebody has life tenure is complicated. But life tenure doesn’t mean — I feel very strongly about this. Judicial independence is, it’s not maximal autonomy. We’ve seen in other countries that I have studied, where the sort of discourse around judicial independence becomes just like, judicial impunity. And that cannot be good, any any more or less, than is true for any other public official. And, you know, it might be that you send these questions and you don’t get answers right away. But there’s a longer discourse to have. I mean, I think there’s a similar set of, maybe even a more intense set of questions about someone like Emil Bove, who is, now, age 43 or whatever, however old he is, and is likely to be on the Third Circuit for a long time, but with a significant cloud. How do we think about how to engage with the questions of accountability? I think there’s lots of different versions of that challenge, and I think we just need to all be creative about thinking about ways to engage that question. Because I think it’s certainly not consistent with the founding to think that there’s public power [that] is just sort of exercised with impunity. This happens to be judges, but that doesn’t mean that anything goes.
The other thing, the other thing that I think is interesting — just before it slips my mind — is that, this particular case, I think about it as well in the context of the broader conflict between district court judges and the higher judiciary, but especially intensely, the Supreme Court, and the ways in which — this is a particularly vivid example of a disjunction between careful, detailed fact-finding by a district court judge who is engaged in what the truth-seeking function of federal judiciary is, and it’s not the only one, in which then the Supreme Court just sort of cast that aside. And I think about this in that context as well. I heard, I think, Steve Vladeck and Will Baude having a conversation about the shadow docket several weeks ago. And one of the things that Steve was saying is that, you know, it seems like the Supreme Court kind of wants to be, or at least, certainly, Kavanaugh does, wants to be kind of like a nationwide district court, but they’re not actually equipped to do it.
LAW DORK: We’ve seen that from Alito in the past, definitely, as well.
KALHAN: Yeah, but they’re not equipped to do it, and they’re not equipped to do it well. So in some ways, this kind of opinion just goes to show that, right? It’s just so easily refuted in so many ways. Or picked apart in so many ways.
LAW DORK: And it’s, it’s from both sides. You’ve got the not respecting District Court fact-findings on the one side, and you’ve got this like we’re gonna just dig into and figure out what facts we think are important from from the Supreme Court level, regardless of of what the district court judges thought were the important ones.
KALHAN: And citing nothing throughout except, “Well, it’s just common sense.” Pretty shoddy.
LAW DORK: I mean, yeah, I think there is also that reality that for for a lot of us, this felt like it was such a slipshod opinion that it really did deserve that pushback. As many of us have said, when we asked for justices to write on the shadow docket, we want it good. As you’re looking — I know that this isn’t your your main area of focus — what do you wish people were paying attention to that they’re not?
KALHAN: One of the other things that’s heartening about this case is that it is bringing immigration issues a little bit more to the fore beyond the people who are sort of regularly paying attention to immigration law questions and immigration enforcement questions. I’ve worked on immigration law for 20-plus years, and it’s been a high-profile issue at various points throughout that time. But that doesn’t mean it necessarily enters into the consciousness in a wide way, and it still probably isn’t. But the reaction to this case suggests to me that it is increasingly so, and I think the reaction to some of the various things that are happening around the country also is suggesting that. And to me, the question then is, will that then migrate into other elites — the political elites, other economic and social elites, and certainly, prestige media. Does it affect how they are, in fact, prioritizing coverage and thinking about coverage of these issues? I mean, there’s been great, great, great reporting. Obviously, a lot of it’s coming from independent journalists and local journalists. And you know, maybe that’s just to be expected in some ways.
LAW DORK: I do think that, watching the way — I mean, it is because it is these people’s communities, it is these people neighbors, it is. It’s the reverse of why Trump was able to do this so well during the campaign in his favor, because then it was about nobody in particular. It was the amorphous them.
KALHAN: Right.
LAW DORK: But, but now it is Maria, who worked down the street from me. Now it is Frank, who is in my community, and that’s much harder for people. There was that New York Times story about the grandmother who had been in town for 20 years. It just is a far different picture. And then you have something like this coming out of of Kavanaugh that doesn’t match with what people are seeing and hearing from their communities on the ground,
KALHAN: And the comfort zone for the national elites, I think — the elite level, national elected officials, national media — is to engage these issues at a much more abstract level. And you know, I don’t say that as a pejorative about them necessarily. It’s just sort of that’s the level at which they’re actually mostly functioning and operating. And what’s been so striking to me is that the the local reporting, the citizen documentation of all kinds, is really part of what is challenging that and has been so valuable. It’s just put such a finer point on how the sort of erosion of local news over many decades, and what a cost that has.
LAW DORK: Yeah. I ended my piece on Sunday with the reporting from a suburb of Chicago outside of a Walmart, and a woman being being harassed and asked where she was born. People need to keep doing that. Is there, before I let you go, is there there anything else that we haven’t talked about that you think we should?
KALHAN: I don’t think so. I’ll look forward to hearing whether, or when, when Justice Kavanaugh’s chambers gets back to you.
LAW DORK: I’m sure it will be soon. Thank you so much for your time.
KALHAN: Thank you.
LAW DORK: Thank you to everybody who joined. As usual, a copy of this will be posted with a transcript later. Thanks.
