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

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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.

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.