Brett Kavanaugh has become Trump’s chief enabler on the supreme court | Sidney Blumenthal
The Guardian · L · trust 43/100
‘Kavanaugh acts as though he is in an ex-officio capacity to the administration’s legal staff writing option memos.’ Photograph: Chip Somodevilla/Getty Images View image in fullscreen ‘Kavanaugh acts as though he is in an ex-officio capacity to the administration’s legal staff writing option memos.’ Photograph: Chip Somodevilla/Getty Images Opinion Brett Kavanaugh Brett Kavanaugh has become Trump’s chief enabler on the supreme court Sidney Blumenthal The justice’s opinions have offered the president workarounds to enact his agenda despite clashes with the court
O f the conservative justices on the supreme court, Clarence Thomas and Samuel Alito have in the current session voted most consistently , at 89 and 88%, to support Donald Trump in his cases, according to the Wall Street Journal. Yet perhaps the most influential justice to advance key parts of Trump’s radical agenda has a slightly lower rating at 76%, and performed not so much by billowing lofty abstractions of originalism and textualism, but instead by contriving an assortment of glib schemes at justification.
Mayhem in the city streets, violence, even killings, renewed rounds of Trump’s threats and shakedowns around the world through damaging tariffs, and chaos within the Congress around birthright citizenship, all of which helped fracture the divided Republican leadership on the eve of the midterm elections, have followed the opinions issued by Brett Kavanaugh . By the end of this session, he has clearly emerged as the chief enabler to operationalize Trump’s most salient political issues.
Kavanaugh issued an unusual sole concurring opinion on 8 September 2025 in Noem v Vasquez Perdomo, staying a lower court’s temporary restraining order that had restricted ICE from targeting individuals based primarily on race, language or occupation. Kavanaugh stated that stopping people based on ethnic appearance, speaking Spanish and laboring at certain jobs was a “relevant factor” and “common sense” to establish “reasonable suspicion”. Justice Sonia Sotomayor, in a blistering dissent, accused the court of legitimizing “racial profiling on a massive scale”. She wrote prophetically: “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.”
Legal scholars were even more devastating in their analyses of Kavanaugh’s opinion. His “invocation” of “common sense” came “at the expense of facts and evidence”, Jennifer Chacón, professor and vice-dean at Stanford Law School, wrote . “Note the number of factual assertions … supported by nothing more than ‘common sense.’ I am not omitting his citations to evidence; there are no such citations.” Duncan Hosie, an academic fellow at Stanford Constitutional Law Center, described Kavanaugh’s claims as “factual revisionism” (ie, falsehoods), “a previously unrecognized form of precedent subversion that operates as a strategic tool to reshape legal doctrine while managing the Court’s dwindling sociological legitimacy”. “Almost every word of this is preposterous,” wrote Sherrilyn Ifill, professor at Howard Law School, about Kavanaugh’s opinion. “What we have seen repeatedly are not ‘stops.’ They are grabs and kidnapping.”
Read more Since Kavanaugh’s rationalization of what have become known as “ Kavanaugh Stops ”, within the first month more than 170 US citizens were detained, “dragged, tackled, beaten, tased and shot”, according to a ProPublica report , while through July of this year , 32 American children have been detained, 31 people have died at ICE detention camps, six people have been shot and killed, including two US citizens, Renee Good and Alex Pretti in Minneapolis, and in July 2026 two men who were not the actual targets ICE agents were seeking were killed .
The sharp criticism of Kavanaugh’s opinion apparently embarrassed him. In an unrelated case, Trump v Illinois, in December 2025, Kavanaugh inserted a non sequitur as an obscure footnote repudiating his previous language. Now he wrote : “Officers must not make interior immigration stops or arrests based on race or ethnicity.” But Stephen Miller has paid no attention to the discreet footnote. The “Kavanaugh Stops” have continued, lately in Texas and Maine with fatal consequences.
The method Kavanaugh applied to ICE abuses he also applied to Trump’s tariffs in the principal dissent on 20 February in Learning Resources, Inc v Trump, in which a six-to-three majority struck down Trump’s claim that he had the absolute power to impose tariffs at will under the International Emergency Economic Powers Act (IEEPA). Trump angrily called those who ruled against him “fools” and “lap dogs”, but said of Kavanaugh: “I’m so proud of him.”
Kavanaugh’s opinion again rested on factual revisionism, citing “history, and precedent” to justify Trump’s unilateral action, claiming it was “a traditional and common tool”, and appealing once more to “common sense”. Kavanaugh had in fact invented an imaginary historical pattern. No president before Trump had used IEEPA in its 49-year history to levy broad tariffs. Kavanaugh distorted the definition of a tariff, not as an import tax whose constitutional power to assert lies with the Congress, but rather a weapon of national security and foreign policy that belongs to the executive. Then Kavanaugh engaged in highly unusual and borderline improper speculation about other non-litigated economic and trade statutes that “might justify most (if not all) of the tariffs at issue in this case”, laying out a roadmap for Trump to skirt the court’s denial of his unconstitutional use of emergency powers.
By the end of this session, [Kavanaugh] has clearly emerged as the chief enabler to operationalize Trump’s most salient political issues Trump announced within hours his workaround: a 10% global temporary import surcharge using section 122 of the Trade Act of 1974, which on 7 May the US court of international trade struck down as illegal.…
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