Duncan Hosie (Stanford Constitutional Law Center) has posted Factual Revisionism: Precedent Subversion and the “Kavanaugh Stop”, published in 78 Stanford Law Review Online 184 (2026), on SSRN. Here is the abstract:
This Essay identifies and theorizes “factual revisionism,” a previously unrecognized technique of precedential subversion. By manipulating the factual predicates underlying precedent application, justices can change settled law while maintaining an appearance of doctrinal continuity. Studying Noem v. Vasquez Perdomo, the Essay demonstrates how Justice Kavanaugh’s concurrence defending the Court’s stay of a district court injunction employed factual revisionism to advance a substantive change in Fourth Amendment law—effectively permitting immigration stops based on apparent ethnicity—while purporting merely to apply United States v. Brignoni-Ponce and its progeny prohibiting racial profiling. The Essay also documents the practical consequences of this change, with “Kavanaugh stops” becoming a defining feature of ICE raids in Minneapolis and other cities subjected to intensified enforcement operations. Situating factual revisionism in relation to recognized typologies of stealth reversals, the Essay posits it may be uniquely corrosive to both horizontal and vertical stare decisis. Factual revisionism exploits numerous adjudicative structures and interpretive conventions: the perceived objectivity of judicial fact-presentation, the deferential posture of appellate review, the hierarchical distinction between courts, a normative expectation of procedural fairness and good faith in adjudication, and a conceptual presumption that parties, not justices, supply adjudicative facts. By silently reconstructing facts to fit preferred legal outcomes, factual revisionism undermines litigants’ ability to vindicate constitutional rights while corroding the epistemic foundations of shared commitment to adversarial factfinding and appellate deference on which the rule of law in common law systems depends.
Recommended.