Judges can take away your civil liberties without ever changing a single law; they just change the 'facts' of the past.
April 15, 2026
Original Paper
Factual Revisionism: Precedent Subversion and the "Kavanaugh Stop"
SSRN · 6560300
The Takeaway
We assume that if the law doesn't change, our rights are safe. This paper exposes 'factual revisionism,' a technique where judges pretend to maintain doctrinal continuity while quietly rewriting the factual predicates that made a precedent work in the first place. A key example is the 'Kavanaugh Stop,' where racial profiling rules are being gutted not by overturning cases, but by 're-interpreting' the reality of police encounters. This means your legal protections can disappear in a 'stealth' way that never makes headlines because it looks like a boring disagreement over details rather than a radical legal shift. It reveals that the most dangerous power of a judge isn't deciding what the law says, but deciding what 'really' happened.
From the abstract
<p>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 <i>Noem v. Vasquez Perdomo</i>, 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