Wednesday, April 25, 2012

And now..... we wait.....

  Today, oral argument season at SCOTUS came to a close as the Justices (minus Keagan) entertained argument regarding Arizona's controversial SB1070.  Even during argument, the Justices seemed to indicate preference for Arizona's position within the narrow question before the court:  whether SB1070 attempts to regulate immigration and therefore is preempted by Federal Law.  One intriguing aspect of this case is the potential effect of Keagan's recusal; will the court evenly divide 4-4, leaving the law suspended by the decision of the lower court? 

The second undeniable aspect of this case is what it DOESN'T purport to consider:  whether the law as applied in practice is racially discriminatory, in violation of the Equal Protection Clause.  Immigration has been a hot-button issue in our political arena, and in an election year, the decision rendered by SCOTUS in June will have a significant impact on the presidential race.  Also on deck, their decision regarding the Patient Protection and Affordable Care Act. 

On SB1070, the Justices will have to ignore the elephant in the room, looming largely in the shadows of the issue of federal preemption.  They will decide this case, this term, this time, without considering the Equal Protection implications of the AZ law.  While powerful, this is a prime example of the limitations of the Court:  they are called upon to provide an answer to the question asked of them.  Not the question they think should be asked, and not the question they want to be asked, but simply the question presented.  That SCOTUS manages to accomplish this task regularly in cases of such controversy is nothing short of remarkable.  The Justices must strip away their personal objections to the law on all other grounds, tune out the protests outside on the steps to the Court, and block out political influences. 

So, my questions to our readers are:  Do you think SB1070 will make its way back to SCOTUS via the Equal Protection Clause?  Will the Justices ever allow their decision in this case to stalemate at 4-4?  How can this SCOTUS term as a whole impact the presidential race?

As these topics can be controversial, let's keep it classy and respectful.  (Hence my narrowly targeted questions)

1 comment:

  1. I don't think it is going to go 4-4. Kennedy is a States-rights guy (except when it comes to gay rights and freedom of speech, those are his sticking points), so it will probably be 5-3. I think it was admirable that Keagan recused herself - showing her to be a far more respectable justice than Scalia or Thomas...

    In terms of an Equal Protection challenge, I think the race question can be ducked, since ICE and other law enforcement agencies for "official" and reporting purposes consider latina/os as Caucasian. National Origin might be less duckable. Since ICE policies haven't been successfully challenged as violating the EP clause, I don't think AZ's law will be successfully challenged on that front.

    I have thoughts on the Presidential race too, but I won't be able to keep it classy if I go there, so I'll pass on that part.