As with most Supreme Court cases, there is often a lot of confusion regarding what the court is actually being asked to do. The majority of us are like my 8th grade history students who think the Supreme Court, like a common criminal court, gives out guilty and not-guilty verdicts choosing a winner and a loser. The reality is that the Supreme Court is generally ruling on a very narrow aspect of a legal argument. At the same time, and this is what is so amazing to me about the Supreme Court , the Justices are very much aware that narrow legal language has everything to do with regular people and real life. Rather than long harangues about so-and- so v. so-and-so, oral arguments seem to take the form of "what if"s and "a person would"s.
There's also a lot of general confusion about the facts. A majority of Americans are probably thinking that SCOTUS is being asked to decide whether racial profiling in Arizona is ok or not. What is actually being asked is whether or not the way AZ enforcement of existing federal immigratioin laws interferes with federal enforcement of those laws. The government is arguing that it does. The future of badly needed immigration reform is not at stake. In fact, the government counsel apparently conceded more than once in oral arguments today that S.B. 1070 does not involves racial or ethnic profiling. Should they be saying something different? I sense a legal strategy here. How can you prove profiling if the law hasn't been put into effect? Personally, I have to wonder if the way the AZ law is written will lend itself to widespread profiling and abuse. But today in court, that wasn't exactly the issue.
Jay Sekulow, an admittedly pro SB 1070 voice, writes:
The "when they're stopped on suspicion of committing a separate offense" clause is a key bit of information easily lost in the din. So now the backroom debates begin between the Justices and we'll hear from them again in a bit. Prediction? This will be something between a 5-2 (Kagan obstaining) and a unanimous decision in favor of the right of Arizona State to enforce federal law.