All posts tagged "brett kavanaugh"

Trump's racist Supreme Court has committed its worst outrage yet

Jason Brian Gavidia, a Trump supporter and U.S. citizen, has described how federal agents treated him during an immigration stop in June.

Gavidia runs an autobody shop in an eastern suburb of LA. One afternoon, a white unmarked van drove by, then did a sudden U-turn. Masked Border Patrol agents jumped out from all doors, carrying handguns and military style rifles.

Two agents approached Gavidia, pushed him up against a metal fence, and twisted his arm backward as they asked an odd question: What hospital was he born in?

Gavidia happened to be born in a neighborhood hospital, close by, so they were satisfied. But his friend and co-worker Javier Ramirez wasn’t so lucky.

Even though Ramirez, a U.S. citizen and father of four, approached the officers with his hands up to show he was no threat, two agents tackled him to the ground. They shoved him facedown, one agent kneeling on his back as he struggled.

Ramirez spent several days in detention. Still traumatized months later, he habitually looks over his shoulder in fear.

Luckily for both men, their ordeal was caught on video. Other recordings of incidents with worse outcomes have gone viral. They show federal immigration officers’ aggression and violence increasing in pursuit of Trump’s daily “detention quotas” to fill for-profit detention centers.

Before Trump

The Fourth Amendment to the U.S. Constitution, ratified in 1791 as part of the Bill of Rights, prohibits unreasonable searches and seizures.

Under clear 4th A precedent, reasonable suspicion is required before any person — U.S. citizen or not, documented or not — can be stopped by law enforcement. Under Terry v. Ohio, settled law since 1962, officers must have specific, articulable facts suggesting that someone is involved in or is about to be involved in criminal activity.

Skin color, a foreign accent, or a racist officer’s hunch were not enough.

The 14th Amendment prohibits the government from denying any person “equal protection of the laws,” meaning the government needs a valid reason before they can treat people differently.

Different conduct was always a valid reason. Different skin color was not.

Until now, both amendments forbade the government from using race as the motivating factor in any government action.

Masked federal agents could not jump out from behind a tree, or an unmarked van, to harass brown people. They couldn’t run up and demand to see their “papers.” They couldn’t throw people into an unmarked van for no reason other than not carrying the right documents in their pocket or purse.

Unequal protection

On July 11, following 4th and 14th Amendment law as it then existed, a District Court enjoined U. S. immigration officers from making investigative stops based on:

presence at particular locations such as bus stops, car washes, day laborer pickup sites, and agricultural sites
the type of work one does
speaking Spanish or speaking English with an accent
apparent race or ethnicity.

Two months later, six Trump-aligned Supreme Court justices lifted that injunction.

On September 8, in Noem v. Vasquez Perdomo, the Republican majority scoffed at significant evidence of racial profiling by ICE agents, similar to what Gavidia and Ramirez endured, and allowed it to continue.

Justice Brett Kavanaugh wrote a smug concurring opinion, rejecting plaintiffs’ standing, then clarifying that “ethnicity alone cannot furnish reasonable suspicion,” but could be a “relevant factor” when considered along with other salient factors.”

He never defined, explored, or explained what “other salient factors” might be, but seemed to think working in a low-paying job was one of them.

Kavanaugh stressed the significance of the government’s immigration enforcement efforts like he was a talking head on Fox News, while ignoring harms to plaintiffs.

In “close cases,” he wrote, citing Hollingsworth v. Perry, “the Court considers the balance of harms and equities to the parties, including the public interest.”

Kavanaugh presumed irreparable injury to the government any time it is “enjoined by a court from effectuating statutes,” without examining how the government effectuates those statutes.

Kavanaugh did not discuss harms caused to children when their parents don’t come home for days, weeks, or months.

He did not discuss fear, marginalization, or the psychological harm of being tackled to the ground by masked federal agents.

He did not weigh the corrosive harms to a nation that no longer trusts but fears the federal government.

Kavanaugh focused only on people who are in the country illegally, ignoring harms to US citizens and their families, writing, “The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.”

He bypassed plaintiffs like Gavidia and Ramires, roughed up and wrongly detained for days, weeks and months even though they are citizens, writing blithely that although the fourth amendment still applied, excessive forces was not part of the underlying injunction.

What’s a brief attack among friends?

Kavanaugh indulged in the delusion that immigration stops are always “brief,” and that brief abuse at the hands of government is fine.

Demonstrating not only naivete but a complete disregard of the record before him, he wrote that when officers learn that the individual they stopped is a U. S. citizen or otherwise lawfully in the United States, they “promptly let the individual go.”

He wrote multiple times that officers only stop people “briefly,” that “reasonable suspicion means only that immigration officers may briefly stop the individual,” and that “Individual(s) will be free to go after the brief encounter…”

The brevity of Gavidia’s encounter did not remove the harm, which may stay with him for the rest of his life. Ramirez’ encounter was not brief, but lasted for days. ICE has wrongly detained hundreds of US citizens for days, weeks, and months.

As Justice Sonia Sotomayor writes in the dissent, the Court has now “declared that all Latinos, US citizens or not, who work low-wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction.”

Republicans on the high court did this after giving Donald Trump immunity for heinous crimes, as long as he’s carrying out ‘official’ duties, like murdering brown people in fishing boats.

The only silver lining is that when — not if — people start dying at ICE’s hands, ICE agents will not share Trump’s immunity. That must be why they wear masks.

Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.

'Bordering on impossible': Brett Kavanaugh's 'breezy suggestion' worked over by scholars

Supreme Court Justice Brett Kavanaugh is drawing pushback for brushing aside concerns about civil rights abuses by immigration agents in this week's controversial ruling that clears the way for racial profiling.

The Donald Trump appointee turned in a 10-page concurrence in the conservative majority's otherwise unexplained decision to allow Immigration and Customs Enforcement officers to continue their "roving" patrols in Southern California, but CNN reported that legal experts were baffled by Kavanaugh's "breezy suggestion" that Americans can simply sue the masked agents who rough them up.

“To the extent that excessive force has been used,” Kavanaugh wrote in his concurrence, “the Fourth Amendment prohibits such action, and remedies should be available in federal court.”

However, experts pointed to a series of recent decisions, including two that covered incidents at the border, the Supreme Court has sharply curtailed the ability of individuals to sue federal law enforcement officers over excessive force claims, and Kavanaugh himself joined the majority in those rulings.

“It’s bordering on impossible to get any sort of remedy in a federal court when a federal officer violates federal rights,” said Patrick Jaicomo, a senior attorney at the libertarian Institute for Justice.

Lauren Bonds, executive director of the National Police Accountability Project, agreed that the court's conservative majority had made it extremely difficult for individuals subjected to excessive force to find an attorney and challenge the federal government.

“What we’ve seen is, term after term, the court limiting the avenues that people have available to sue the federal government,” Bonds said.

A federal court ordered the Department of Homeland Security in July to end its practice of making stops based on a person's apparent ethnicity, language or presence at a particular location, such as a day laborer gathering place, but the Supreme Court put that order on hold and cleared the way for that approach while legal challenges continue in lower courts.

“The government, and now the concurrence, has all but declared that all Latinos, U.S. citizens or not, who work low wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agents’ satisfaction,” wrote Justice Sonia Sotomayor in a sharp dissent joined by fellow liberal justices Elena Kagan and Ketanji Brown Jackson.

Sotomayor argued the conservative majority had effectively ended Fourth Amendment protections for anyone who looked or sounded like they're Hispanic or Latino, but a former Kavanaugh clerk offered a generous reading of the Trump nominee's concurrence.

“When you have an important sentence that’s very ambiguous, it’s usually deliberately so,” said Richard Re, a Harvard Law professor who clerked for Kavanaugh when he was an appeals court judge.

Re suggested that Kavanaugh could have been trying to signal where he thinks the law should go.

“I think it’s not clear what to make of that remark,” Re said. “It could suggest a genuine interest, on at least one pivotal justice’s part, in revitalizing Fourth Amendment remediation.”

Kavanaugh did note concerns in Sotomayor's dissent but argued the issue of excessive force wasn't involved in the case at hand, saying the Fourth Amendment continued to govern the use of force, but legal experts say he failed to explain what vindication should be available when those violations do occur.

“Sincerely wondering what remedies does Justice Kavanaugh believe are and should be available in federal court these days for excessive force violations by federal immigration officials?” University of Chicago law professor William Baude posted on social media.

Trump-nominated US attorney launches investigation into Schumer to 'protect' DOGE

A Trump-nominated D.C. prosecutor announced Wednesday that he's investigating Sen. Chuck Schumer (D-NY) and anyone who threatens federal employees like Elon Musk's Department of Government Efficiency (DOGE).

NBC News' Ryan Reilly reported to BlueSky that "this morning, Interim U.S. Attorney for the District of Columbia Ed Martin — a 'stop the steal' organizer and Jan. 6 defendant advocate — sent an email titled 'Operation Whirlwind' in which he said he's personally launched an investigation into Sen. Chuck Schumer."

Reilly posted a screenshot of Martin's email to colleagues that described "despicable" threats being received by DOGE workers and other Trump administration officials, including Defense Secretary Pete Hegseth.

In addition, "Our office has been flooded with threats against those who helped free the January 6th prisoners," Martin wrote.

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He continued, "We are the DC US Attorney's Office; we are the guardians of federal workers. You and I must do whatever possible to assure government work is safe for all involved. We must protect our cops, our prosecutors, our DOGE workers, the President, and all other government employees from threats against our nation.”

In one of the "most abhorrent examples," Martin detailed threats allegedly made by Schumer against conservative Supreme Court justices. He quoted Schumer as saying in a speech, "I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

Martin wrote, "I reached out to Schumer to investigate his threats," but wrote that he had not received a response.

"Let me be clear," Martin wrote. "We will protect each other. We will protect DOGE. We will protect our judges and cops. And we will go after the people who threaten federal workers and who use their threats to move others against us. We will hold all of them accountable because, as former President Joe Biden said in 2024, 'No one is above the law.'"

Martin ended the email by asking colleagues "to send any and all threats you see or hear to me."

Read the email on BlueSky below.

"We will protect DOGE." This morning, Interim U.S. Attorney for the District of Columbia Ed Martin — a "stop the steal" organizer and Jan. 6 defendant advocate — sent an email titled "Operation Whirlwind" in which he said he's personally launched an investigation into Sen. Chuck Schumer. The text:

[image or embed]
— Ryan J. Reilly “paints a vivid and urgent portrait of… disarray” (@ryanjreilly.com) February 19, 2025 at 10:48 AM

Revealed: Redacted SCOTUS document helped hide 'public scrutiny of the court’s doings'

The U.S. Supreme Court sought to boost protection for its justices in anticipation of overturning the landmark Roe vs. Wade decision that granted abortion access in the United States for some 50 years, according to a new report in The Guardian.

The U.K. publication reported Sunday that it obtained the "heavily redacted" memorandum of agreement (MOA) from March 2022 after it resurfaced on governmentattic.com.

The document "sought to beef up judicial protection" for court justices, "while also reducing public scrutiny of the court’s doings, before the court’s controversial decision to overturn Roe v Wade," wrote investigative journalist Jason Wilson.

The conservative court's landmark 6-3 decision on Dobbs v. Jackson Women's Health Organization was made public in June 2022.

Donald Trump repeatedly took credit for the result, after he appointed three conservative justices during his first term in office -- Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

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The Guardian report continued, "The document shows that the US marshals service and the Supreme Court of the United States Police Department (SCUSPD) agreed to enhance cooperation and intelligence sharing and provide protection for retired judges on request. It also mandated that the cost of USMS’s enhanced cooperation would be paid for by them and the department of justice, rather than being added to the judiciary’s budget.

"Crucially, the MOA mandates that the court would maintain 'exclusive legal custody and control' of all security-related records, even those in USMS possession. That means those records would be explicitly excluded from Freedom of Information Act (FOIA) requirements, and hidden from public view."

The Guardian quoted Gabe Roth, executive director of Fix the Court, a non-profit that focuses on SCOTUS transparency, saying that the MOA made it “sound like SCOTUS is upset that you and I and others keep requesting travel records of the justices via FOIA, and they’re trying to get around sharing them under the law”.

The Freedom of Information Act, passed in 1967, granted the public the right to request access to records from any U.S. federal agency.

The Guardian report concluded that the U.S. Marshals Service and SCOTUS police "may give some consideration to the court’s cases" when they formulate their security plans for the court and its justices.

Read The Guardian report here.

Federalism for Dummies: How to survive Supreme Court stupidity without losing your mind

I love the “For Dummies” book series. They can teach an old dog new tricks without making the old dog feel stupid, although, I admit, “Getting Out of Debt For Dummies”” wasn’t particularly useful. (Turns out one must spend less than one earns; if they had just written that on the cover I’d be $18.79 closer to my financial goals.)

But the series pretty much answers all of life’s questions, from how to stop killing houseplants to understanding the basics of astrophysics.

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So, naturally, when confronted with last week’s dizzying patchwork from the U.S. Supreme Court, I turned to “Critical Thinking for Dummies” desperate to understand how “federalism” means one thing when the court talks about corruption, but something else entirely when it talks about abortion or guns.

Despite nearly 30 years as an attorney prowling the chambers of federal courts, my brain hurts.

Federalism’s new definition of corruption

Last week, Republicans on the Supreme Court stripped the executive branch of key power.

They also decided that bribing an elected official isn’t bribery if you wait a few days and call it a gratuity instead. In Snyder, six conservative justices agreed that gifts, money or things of value from grateful citizens who simply wish to “thank” public officials for their service is a “gratuity,” not a “bribe,” so the federal bribery statute doesn’t apply. No doubt Clarence Thomas, who has been thanked to the tune of $4 million for his devotion to guns, fossil fuels and culture wars, appreciated his colleagues’ skillful parsing.

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Before conservatives got out their X-Acto knives, the federal anti-corruption statute, 18 U.S. Code § 666, made it “a crime for most state and local officials to corruptly solicit, accept, or agree to accept anything of value intending to be influenced or rewarded in connection with” any business or transaction worth $5,000 or more. James Snyder, former mayor of Portage, Indiana, stepped in it when he steered more than $1 million in city contracts to a local truck dealership, which then turned around and cut Snyder a $13,000 check.

Snyder called the money payment for consulting services; the feds called it illegal.

Snyder was convicted by a federal jury, sentenced to 21 months in prison, and appealed.

In reversing the decision, and writing for the 6-3 Republican majority, Justice Brett Kavanaugh admitted that federal law prohibits bribery, but determined that bribing an official up front wasn’t the same as tipping them for highly agreeable service after the fact. Treating mere “gratuities” like bribery, he wrote, would infringe on “bedrock federalism principles” and thereby offend states’ “prerogative to regulate” graft for themselves. Kavanaugh reasoned that if the feds apply section 666 alongside state enforcement, some hapless elected official could get “trapped” by a law that leaves him “entirely at sea,” guessing which expensive gifts he is allowed to accept.

“‘Just Say No’ for Dummies,” anyone?

Justice Ketanji Brown Jackson’s snarky and spot-on dissent called Kavanaugh’s “absurd and atextual reading of the statute” an interpretation that “only today’s Court could love.” Ignoring the advice she read in “Blind Deference for Dummies,” Jackson wrote forcefully that, “The Court’s reasoning elevates nonexistent federalism concerns over the plain text” of the federal anti-corruption statute.

Federalism means something else when it comes to guns

The court’s newfound respect for state law on corruption — finding there was no corruption — is hard to square with its earlier decisions annihilating state law.

Take guns, for example. In 2022, the Supreme Court’s Bruen decision struck down New York’s conceal carry law. Citing federalism four times, the court struck New York’s law because the state couldn’t identify a concealed carry law that existed in 1790. Never mind that colonial era muskets, pistols and bayonets were too large to be concealed in anyone’s haversacks; colonial law didn’t bar people from strapping loaded cannons onto their backs, either.

But then, last week’s Rahimi case — about domestic violence and guns — forced conservative justices to see Bruen’s “historical antecedent” absurdity up close.

In Rahimi, Texas’ blood-red Court of Appeals for the 5th Circuit followed Bruen and ruled that violent offenders under restraining orders could have guns because there was no law from 1790 that said they couldn’t.

Citing the Federalist papers nine times, Rahimi revealed the stink of Bruen’s “trapped in amber” jurisprudence, and left the Supreme Court with a choice: stick to Clarence Thomas’ wholly made up “historical antecedent” requirement by arming known violent offenders — and shed the Court’s last hair of credibility — or follow common sense and admit they were wrong. They didn’t quite admit error (see,“Reluctant Mea Culpa for Dummies”), but they did decide that violent men who brutalized their victims ought not have a gun to finish the job.

Using federalism to defeat equal protection

This rant closes, as it must, with Dobbs, another bombshell decision spurred by Donald Trump and animated by Republicans on the high court.

Whatever you think about abortion, bracket that opinion long enough to consider this: Would federalism allow states to mandate vasectomies for all men under 50, given that states now have the power to make life and death decisions without regard to pesky strictures of equal protection?

If state legislatures truly wanted to end abortion, wouldn’t mandatory vasectomies make more sense than state-forced birth? Vasectomies are effectively risk-free, while the maternal mortality rate is 32.9 deaths per 100,000 births. Vasectomies cost around $1,000; giving birth averages $19,000, to say nothing of more than $300,000 to raise a child. Ninety percent of vasectomies are reversible, while live birth causes permanent physical/chemical changes. Most importantly, for legal review, vasectomies, unlike forced birth laws, are nearly 100 percent effective.

Justice Samuel Alito (Photo via Erin Schaff / for AFP)

If the vasectomy question ever found its way to Justice Samuel Alito, you can bet he would tap the 14th Amendment’s guarantee of equal protection for men, even as he callously denied it for women.

States can now, by popular vote, force women into nine months of medical confinement, financial instability and excruciating childbirth pain — too frequently leading to death — but this Supreme Court would invoke federalism (or its twin corollary “originalism”) to strike state-forced vasectomies as “mere pretext” for “invidious discrimination” against men.

Up next: “How to Impeach Justices Who Lie to Congress During Their Confirmation Hearings for Dummies.”

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake Take, is free.

'Remarkably poor strategy': Expert says Trump team's bid to bully justices will backfire

Former President Donald Trump's legal team is setting itself up for disaster by trying to threaten and intimidate Supreme Court Justices, Protect Democracy executive director Ian Bassin said on MSNBC Friday.

This comes as one of Trump's top lawyers stated on Fox News that she wants Justice Brett Kavanaugh, one of Trump's appointees, to "step up" on cases involving the former president.

"The fact that you have Alina Habba showing up on Fox one day saying he's worried the court won't rule in his favor and then another day saying they expect justices like Justice Kavanaugh to, quote, 'step up,'" said anchor Alicia Menendez. "I mean, the subtext seems pretty clear."

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"Well, it's remarkably poor strategy," said Bassin. "They're used to bullying elected officials who need to run for office in Republican primaries who depend on Trump's blessing. But of course the justices of the Supreme Court have life tenure, and they want to establish they're independent. I think that strategy of trying to pressure, bully, or intimidate Justice Kavanagh is likely to backfire."

"But I want to make sure we don't lose the forest for the trees here, which is that whatever the court does in the details or on the merits, take stock of the fact we are having a national debate of whether one of the likely nominees for a major party for the president engaged in insurrection against the United States," Bassin continued.

"Regardless of the law, shouldn't that be just politically disqualifying for either party?" he added. "Don't both parties want someone without a question as to whether or not they engaged in insurrection?"

Watch the video below or at the link.

Ian Bassin says Trump team's bullying of Brett Kavanaugh is a "poor strategy"www.youtube.com