According to Dahlia Lithwick and Marc Joseph Stern, people have started calling immigration stops of random Hispanics by the derogatory term “Kavanaugh stops,” referring to Justice Brett Kavanaugh’s concurrence in Noem v. Perdomo.

Here, those circumstances include: that there is an extremely high number and percentage of illegal immigrants in the Los Angeles area; that those individuals tend to gather in certain locations to seek daily work; that those individuals often work in certain kinds of jobs, such as day labor, landscaping, agriculture, and construction, that do not require paperwork and are therefore especially attractive to illegal immigrants; and that many of those illegally in the Los Angeles area come from Mexico or Central America and do not speak much English. Cf. Brignoni-Ponce, 422 U. S., at 884–885 (listing “[a]ny number of factors” that contribute to reasonable suspicion of illegal presence). To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a “relevant factor” when considered along with other salient factors.

The uproar over what can kindly be characterized as Kavanaugh’s slopping writing, that while ethnicity alone might not prove sufficient for reasonable suspicion, ethnicity plus some other benign factor, such as presence at Home Deport or working as a landscaper or in construction would suffice. Kav then doubled down by crafting a fantasy scenario of how such stops happened.

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. Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status. 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.

Lithwick and Stern argue that Kavanaugh’s feelings were hurt when the subsequent stops, bearing no relationship to his brief and breezy encounters, turned out to be forceful, prolonged and, too often, violent.

Justice Brett Kavanaugh does not seem happy that his name has become synonymous with racist immigration enforcement. In September, the justice wrote that Hispanic residents’ “apparent ethnicity” could be a “relevant factor” in federal agents’ decision to stop them and demand proof of citizenship. Immigration and Customs Enforcement and Customs and Border Protection promptly seized upon his opinion as a license to stop any Hispanic person on the basis of race—often with excessive, even sadistic force—and detain them until they proved their lawful presence.

Law professor Anil Kalhan termed these encounters “Kavanaugh stops,” and the name swiftly caught on as evidence mounted that they had become standard practice across the country. Lawyers also provided courts with evidence that Kavanaugh had sanitized the reality of this practice to the point of fiction. The justice claimed that these were “brief investigative stops” and that any lawful resident would be “promptly” released. In truth, federal agents brutalized, kidnapped, and tormented people—including many U.S. citizens—simply because of their ethnicity, even after they asserted legal status.

Accordingly, Lithwick and Stern argue that Kavanaugh sought to undo the damage he caused by his sloppy writing, providing cover to ICE to round up anyone with darkish skin, an accent or a vowel at the end of their name, in his concurrence in Trump v. Illinois,

The State’s opposition to deployment of the National Guard appears to stem in part from the State’s underlying objections to the activities of federal immigration officers when they make immigration stops and arrests in Illinois. 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. Cf. Whren v. United States, 517 U. S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race”). This application does not require us to delve into the parties’ underlying dispute and to determine whether any particular immigration encounter or series of encounters in Illinois has violated those basic constitutional principles.

Do “factors” mean something vastly different from “considerations”? They do, according to Lithwick and Stern.

Now it appears that Kavanaugh has some regrets. Last Tuesday, the justice backtracked from his previous position without quite acknowledging the retreat. He did so in a concurrence to the Supreme Court’s decision to block President Donald Trump’s deployment of the National Guard—a case that does not even directly concern “Kavanaugh stops.” In a footnote, he declared that race and ethnicity could not be “considerations” when officers make “immigration stops or arrests.” That directly conflicts with his earlier assertion that officers can use race and ethnicity as a “factor” when deciding whom to detain. The two positions cannot be reconciled. Yet Kavanaugh did not admit that he had changed his position; he simply pretended that the law in this area was “clear,” when he himself muddied it just months earlier.

While the rhetorical distinctions between “factors” and “considerations” seems unduly strained, their point appears correct, that Kavanaugh came to the realization that his sloppy writing in Perdomo gave ICE license to basically round up Hispanics under his “Hispanic plus” theory of reasonable suspicion, and that they weren’t just asking nicely whether they were citizens or walking away when their suspicion didn’t metastasize into probable cause for seizure.

Lithwick and Stern are also correct that Kavanaugh failed to own up to his own sloppiness and admit that his language in Perdomo was dangerously misguided and gave rise to a great many illegal seizures that might never have happened had he not written that being Hispanic plus was close enough to be shipped off to El Salvador to spend the rest of one’s life in a torture prison.

That said, now that “Kavanaugh Stops” are very much “a thing,” can they become not a thing? On the one hand, it’s highly unlikely that ICE and CBP are inclined to revisit the bases upon which the masked men pinch people on the street. Once given the power to do any damn thing they please, it’s hard to give it up. On the other hand, given the way the Supreme Court has undercut federal district judges nationwide ruling on individual cases, even a clear statement by Kavanaugh or the Court is unlikely to compel ICE to do anything differently. It’s not as if every case will finds its way to the Supreme Court, and the justices have made it abundantly clear that lower court rulings are for kicks, not to be taken too seriously.