On Friday, the Supreme Court denied the Trump administration’s request to reinstate an unlawful effort to prevent many refugees from seeking asylum in the United States. This order is not surprising, as the Trump administration’s arguments are so weak that they literally were rejected by the judge who wrote infamous Bush era memos authorizing torture.

What is surprising about Friday’s order in Trump v. East Bay Sanctuary Covenant is the vote. The decision was 5-4, with Chief Justice John Roberts joining the four Democrats in the majority. All four of the remaining Republicans, including Brett Kavanaugh, voted to grant the stay.

Since joining the Court, Kavanaugh staked out more moderate positions in a handful of cases than his performance during his confirmation hearing suggested. After Kavanaugh was credibly accused of attempting to rape psychology professor Christine Blasey Ford while both he and Ford were in high school, Kavanaugh delivered an angry rant to the Senate Judiciary Committee where he appeared to threaten revenge on Democratic senators.

“What goes around comes around,” the Supreme Court nominee told senators.

Yet, despite his apparent vow of revenge, Kavanaugh rejected an effort by Justice Clarence Thomas, Justice Samuel Alito, and Neil Gorsuch to halt a trial probing whether the Trump administration unlawfully tried to rig the census to discourage many immigrants from participating. Kavanaugh also broke with the same three judges on whether the Court should take up a case involving states that sought to defund Planned Parenthood.


One theory explaining Kavanaugh’s differences with the Court’s hardliners is that he is genuinely more moderate than his most ideological colleagues. Another theory is that he was intentionally holding his fire until the memory of how he got his current job fades away. A third theory is that he was simply being strategic — the Census case is now on the Court’s docket, and the issue in the Planned Parenthood case is likely to come up again, so Kavanaugh will likely get his chance to weigh in on both issues.

In any event, the theory that Kavanaugh may have a moderate streak is much harder to defend after his vote in East Bay. That case involves a presidential proclamation and set of regulations that, together, makes asylum “unavailable to any alien who seeks refuge in the United States if she entered the country from Mexico outside a lawful port of entry.”

The problem with this policy is that the Immigration and Nationality Act requires the United States to accept asylum applications from any foreign national who is “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival.” So the Trump administration’s policy literally does the opposite of what federal law requires.

Faced with the fact that there is a federal statute directly on point which explicitly forbids the exact thing that they are attempting to do, the Trump administration rested its legal arguments on a very thin distinction. The statute, they claim, only says that anyone physically present in the United States must be allowed to apply for asylum. The Trump administration’s policy, they argue, merely requires that those applications will be rejected.

That argument was too much, even for torture memo author Judge Jay Bybee. “It is the hollowest of rights,” Bybee wrote for the United States Court of Appeals for the Ninth Circuit, “that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact.”


Apparently, however, this flimsy argument was just enough for four of the Supreme Court’s Republicans, including Kavanaugh.