Kavanaugh Sparks Backlash Over ICE Lawsuits
Justice Brett Kavanaugh is at the center of controversy after a recent opinion suggested that Americans who experience excessive force from ICE agents should be able to sue in federal court. On the surface, that might sound like a straightforward protection of constitutional rights. But the pushback has been swift because, in practice, the Supreme Court has repeatedly made it extremely difficult for such lawsuits to succeed.
The remark came in a concurrence Kavanaugh wrote this week, explaining the court’s emergency decision to allow the Trump administration to continue aggressive immigration patrols in Southern California. Reports had surfaced of masked ICE agents shoving and detaining Hispanic individuals—some of whom were U.S. citizens. One man was slammed against a fence, had his phone confiscated, and was interrogated about his citizenship. Another was dragged into a vehicle and questioned in a warehouse setting. Despite these accounts, the majority of the court let the patrols proceed for now.
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In his opinion, Kavanaugh noted that the Fourth Amendment prohibits excessive force and that remedies should be available in federal court. But here’s the tension: in recent years, the Supreme Court itself has shut the door on most of these remedies. Lawsuits against federal officers are generally tied to a 1971 precedent known as Bivens , which allowed claims against federal drug agents for an unlawful search. Since then, however, the court’s conservative majority—including Kavanaugh—has repeatedly limited the scope of that ruling, often tossing out excessive force claims against federal officers.
Civil rights attorneys quickly pointed out the contradiction. Patrick Jaicomo, an attorney with the Institute for Justice, said it is “bordering on impossible” to get any kind of remedy in federal court when a federal officer violates someone’s rights. Lauren Bonds, who leads the National Police Accountability Project, added that even finding an attorney willing to take on the federal government can be a serious hurdle, especially given how narrow the pathways for relief have become.
Justice Sonia Sotomayor, writing in dissent, expressed sharp criticism. She argued that the government—and now Kavanaugh’s concurrence—essentially declared open season on Latino workers in Southern California, regardless of citizenship. Her warning highlighted fears that ethnicity and low-wage status are being used as a proxy for suspicion of being undocumented.
Some legal scholars think Kavanaugh may have been signaling something larger with his statement, perhaps hinting at a willingness to reopen the conversation about remedies under the Fourth Amendment. But others were more skeptical, noting that his words were vague and carefully hedged.
For now, the practical reality remains: Americans who feel mistreated by federal immigration agents face a steep uphill battle in court. Kavanaugh’s comment may have drawn attention, but the gap between what is written in opinions and what actually happens in federal courtrooms remains wide—and that’s where the frustration is coming from.
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