Post-oral arguments Arizona v. U.S. prediction update

April 26, 2012

SCOTUS ClipboardYesterday, the Supreme Court heard oral arguments in Arizona v. United States, which is the Federal Government’s legal challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, otherwise known as S.B. 1070.

Back in January, I wrote a post predicting the outcome of the case.

Yesterday’s oral arguments may have verified certain portions of my predictions, but confused others, so an update seems necessary.

First, I initially predicted that Scalia would be fully supportive of Arizona.

Scalia proved this to be true with gusto.

During the arguments, Scalia strongly supported the notion that the Constitution gives individual states “the power to close its borders to people who have no right to be there” (i.e. unlawful aliens).

Regardless of the inaccuracy of this assertion, it stands to confirm that Scalia will be voting to reverse the Ninth Circuit Court of Appeals, as predicted.

Justice Thomas, once again, didn’t speak during oral arguments, but considering his strong history of supporting the autonomy of individual states, I doubt that I would have to change my prediction that he will also vote to reverse.

The remaining six Justices (Kagan recused herself) are a bit more difficult to place.

This is mainly because the bulk of the arguments framed S.B. 1070 as a cooperative immigration enforcement venture with federal authorities, which was the work of Arizona’s attorney, Paul Clement.

In this light, most of the Justices seemed somewhat amenable to the idea that Arizona’s law enforcement could assist federal immigration officials with tracking down and detaining individuals present in the country unlawfully.

The government’s attorney, Donald B. Verrilli, Jr., did not fare well in this environment, which is somewhat understandable since S.B. 1070 isn’t really a cooperative venture with the feds.

However, that doesn’t excuse Verrilli from failing to correct the course of the discussion towards the criminal sanctions created by S.B. 1070, and the potentially substantial Due Process Clause violations accompanying them – which he did, to some extent, by the end.

Protest outside of the Supreme Court against SB 1070One of Verrilli’s stronger points in the arguments came at this point in response to a question from Justice Sotomayor.

Verrilli pointed out that if a citizen left the house without any identifying documents and, say, went to a park after it closed and was detained by law enforcement, it could take up to 70 minutes to determine that person’s citizenship status.

Though compelling, by that point, it may have been too late to salvage the rest of Verrilli’s argument, which didn’t seem that persuasive to many of the Justices.

If the government is lucky, the conventional wisdom – that oral arguments rarely influence the outcome of the Court’s decision – will hold.

Considering the narrow scope of the law covered during them, it seems very likely that the oral arguments only revealed the Justices leanings, instead of directly influencing them.

There are several complexities to this case that make making an accurate prediction all the more difficult.

One, the recusal of Justice Kagan creates the possibility of a messy 4-4 split, which the Court will want to avoid if possible.

Next, the oral arguments seemed to create two different categories for the provisions of the law being challenged.

The first encompasses the provisions that allow Arizona police to detain individuals whom the officers have reasonable suspicion are in the country illegally.

These provisions represent the so-called “cooperative” category – namely, of the state-federal cooperation that most of the Justices seemed somewhat agreeable to.

The second covers the state criminal sanctions imposed on unlawful aliens (one for failing to keep proper documents with them at all times, the other for applying for a job in the state).

These were very lightly covered during oral arguments, but, where they were, most of the Justices gave them a cold reception.

Adding to the complexity is the fact that Justices Kennedy and Alito were hard to gauge based on their questions.

Chief Justice John RobertsChief Justice Roberts, on the other hand, seemed to come out more in support of Arizona – though not to the extreme level that Scalia did.

As such, there are two possible outcomes of this case.

In the first, SCOTUS votes 5-3 (with Roberts, Alito, Kennedy, Thomas, and Scalia in the majority) to reverse the Ninth Circuit and uphold Arizona’s law as to the first category of provisions, but votes 5-3 to strike down the second category (with Alito, Kennedy, Sotomayor, Breyer, and Ginsburg in the majority).

The second possible outcome finds the latter 5-3 majority striking down all of the provisions of Arizona’s law in question.

This possibility comes with the addition of a more concrete legal scheme on immigration determining what is up to Congress and what is left to the states, with quite a bit more deference going to the states.

The likelihood of the second possibility is dependent on how important the addition of this framework is to Alito and Kennedy, since it would be a bit more difficult to squeeze this in with a split decision like the first possible outcome.

The two possible outcomes are almost equally likely, though, so I’m hesitant to come down strongly in favor of either one.

The second is a bit easier to write down, so I guess I’ll go with that one.

Arizona v. United States

Question Presented

Whether federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt four provisions of S.B. 1070 on their face.

Lower Court’s Decision

Federal law preempts Arizona’s laws

My Prediction

AFFIRM 5-3 (Majority:  Alito, Kennedy, Ginsberg, Breyer, and Sotomayor; Dissent: Roberts, Scalia, Thomas; Recuse: Kagan).

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