U.S. Supreme Court to Hear Arizona Law SB 1070; Kagan recuses herself

The U.S. Supreme Court agreed Monday to rule on the politically charged law SB1070 in Arizona targeting illegal immigrants, according to chron.com.

The immigration case stems from the Obama administration's legal battle against a piecemeal state laws aimed at stopping illegal immigration: 11-182 ARIZONA, ET AL. V. UNITED STATES

One of the most striking aspects of the court’s decision to hear the Arizona case is Justice Kagan’s withdrawal from the case based on her previous work in the Obama administration. Since being appointed by President Obama, she has avoiding sitting on any cases to which she might have worked on or participated in during her appointment as solicitor general.

The Supreme Court announced that it will hear Arizona’s appeal of a lower court decision blocking much of its unconstitutional anti-immigrant law SB 1070: The petition for the writ of certiorari was granted without Justice Kagan participating in the decision.

Justice Kagan’s recusal reduces the number of justices hearing the case to eight, which could result in a tie. In this case the rules established by lower courts will stand, which means SB 1070 will remain under a preliminary injunction.

If the five court conservatives vote in a block to overrule that Arizona’s law is unconstitutional, then even a liberal Kagan vote would not make a difference; therefore, the position that each of the conservative leaning justices take will determine the decision. The five Conservation justices are Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy and Samuel Alito.

Clarence Thomas is considered a Federalist and staunch conservative. Federalism is the concept based on democratic rules and institutions in which power to govern is shared between federal and state governments. This principle of shared governance could weigh in his decision on the constitutionality of SB1070 which advocates its state’s powers to create and enforce immigration laws in addition to federal law sovereignty.

Antonin Scalia, a Ronald Reagan appointee, has opposed affirmative action and supports “orginalism.” This is the principle seeking to interpret the original meaning or intent of the constitution. It will be interesting to see how he interprets the “original” meaning of the 4th Amendment and the constitutionality of SB1070. The 4th Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the placed to be searched, and persons or things to be seized. Arizona’s law SB1070 makes it a misdemeanor to lack proper immigration paperwork in Arizona. It also requires police officers, if they form a 'reasonable suspicion' that someone is an illegal immigrant, to determine the person's immigration status." There is no clear definition about what comprises “reasonable suspicion,” which leaves it to the discretion of individual police officers.

Chief Justice John Roberts nominated by George W. Bush is a conservative in judicial philosophy and favors Federalism. On a radio show in 1999 he said "We have gotten to the point these days where we think the only way we can show we’re serious about a problem is if we pass a Federal law, whether it is the Violence Against Women Act or anything else. The fact of the matter is conditions are different in different States, and State laws can be more relevant is I think exactly the right term, more attune to the different situations in New York, as opposed to Minnesota, and that is what the Federal system is based on.’

He stated further in the interview, "just because you have a problem that needs addressing, it’s not necessarily the case that Federal legislation is the best way to address it."

His approach to federalism exemplified by the previous statement gives an indication of how his arguments could be framed into terms of deciding on SB1070 in terms of state’s rights in crafting laws specific to their needs.

Anthony Kennedy is also a Ronald Reagan appointee, and since Sandra Day O’Connor retired is thought to be the swing vote which he dislikes being labeled, although observers believe he leans conservative most of the time. His jurisprudence is described by some as libertarian.

Justice Kennedy has joined with Court majorities in decisions favoring states' rights and invalidating federal and state affirmative action programs. He ruled with the majority on Equal Protection grounds in the controversial 2000 Bush v. Gore case that halted continuing recounts in the 2000 presidential election and ended the legal challenge to the election of President George Bush.

Kennedy is more conservative than former Justice O'Connor was on issues of race, religion, and abortion. On the Roberts Court, Kennedy often decides the outcome of a case, which could be the outcome with SB 1070. In the 2008–2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals only 5, therefore, he was the “swing vote” in those 5 decisions—whether he likes the moniker or not.

He supports a constitutional right to abortion in principle, though he has voted to uphold several restrictions on that right, including laws to prohibit partial birth abortions. He is "tough on crime" and opposes creating constitutional restrictions on the police, especially in 4th Amendment cases involving searches for illegal drugs, although there are some exceptions, such as his concurrence in Ferguson v. City of Charleston decision that found Medical University of South Carolina's policy regarding involuntary drug testing of pregnant women to violate the 4th Amendment.

Samuel Alito nominated by George W. Bush and has been a member of the Federalist Society, a group of conservatives and libertarian lawyers and legal students interested in conservative legal theory. On the abortion issue, it appears that Alito believes some restrictions on the procedure are constitutionally permitted, but has not signaled a willingness to overturn Roe v. Wade.

According to a scotusblog.com analysis of 2005 term decisions, Alito and Scalia concurred in the result of 86% of decisions (in which both participated), and concurred in full in only 75%.

Conclusion

With Justice Kagan’s recusal, the possbility of a tie among the Supreme Court Justices is not out of the realm of possibilities and SB 1070 could remain under a preliminary injunction. Justice Kennedy could represent the swing vote although he has opposed placing restrictions on the police and SB 1070’s “reasonable suspicion” clause gives the police arbitrary powers of interpretation. On the other hand, the Obama Administration’s position is the law oversteps the state’s right to create immigration law which is the responsibility of the U.S. Government. How this is interpreted by the federalist’s justices remains to be seen.

The Court will begin hearing the case in the spring and should have a decision by next summer before the Presidential election in November 2011. The decision will set the precedence for other state’s who are considering legislation similar to Arizona.

Arizona’s history of legislation has been said to be reminiscent of the Nuremberg Laws of 1935 when Hitler introduced the laws and the motivation for their enactment. The President of the Reichstag prepared the way: “Bitter complaints have come in from countless places citing the provocative behavior of Jews and certain amount of conspiratorial planning was needed to prevent vigorous defensive action by the Aryan people. We have no choice but to contain the problem through legislative measures.” This law was an attempt to legislate a solution, and if legislations failed, they precluded it necessary to transfer “the Jewish problem” to the National Socialist party for a final solution, or what we know today as the Holocaust.

This is from a blog written by a man named Santiago.

I am a 5th generation US citizen and have been singled out many times for the color of my skin. I have no accent, but am of Latino origin. I have been pulled over and asked what I am doing in the neighborhood. I point across the street and say I live there. This law allows racial profiling under color of law. What is "reasonable suspicion"? Accent, brown, black, clothes?

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