It’s impossible to have a debate about federalism and the relationship between the federal government and the states without, to some degree, harkening back to the ultimate issue of federalism in this country’s history, slavery. Yet that is exactly what proponents of Arizona’s controversial anti-immigrant law managed to pull off during oral argument before the Supreme Court, and by every indication the conservative wing of the court was more than happy to enable that historical whitewash.
Solicitor General Donald B. Verrilli had not yet even started his argument when Chief Justice Roberts made it clear what the court would not be discussing. The court would not be discussing racial profiling, despite the fact that racial profiling is at the center of the political dispute surrounding the bill and that racial profiling and the impact of the federalism arguments go hand in hand.
“I just want to make clear what this law is not about,” Roberts said. “No part of your argument has to do with racial or ethnic profiling, does it?” At this point Verrilli had an opening to explain to the court that yes, your honors, the issue of race and racial profiling, while not immediately briefed before the court, informs the very heart of the Arizona bill and therefore the very spirit of this argument before the Court. I won’t armchair quarterback here except to say that Verrilli appeared to make the same mistake here as in the health care arguments, and that is assuming that most of the justices exist in a world of law and not of Fox News politics.
For a case that wasn’t about race, the justices spent the remainder of the arguments talking about immigrants in the most racially charged and unflattering manner possible. Justice Scalia referenced the “invasion” of undocumented immigrants, comparing them to a roving band of armed thieves. Scalia even threw a bone to the nativists suggesting what the Obama administration was really looking for was a ruling that would allow the US to “enforce our laws in a way that pleases Mexico.”
When Verrilli did muster up the courage to suggest that Arizona’s Latino population was implicitly, if not explicitly targeted in the law, it was obvious that Scalia had never considered the possibility that many of the state’s Latinos are there lawfully. “Are you objecting to harassing the people who have no business being here? Surely you’re not concerned about harassing them.”
Ladies and gentlemen, I give you Justice Scalia in all his unbridled racist glory.
Justice Elana Kagan recused herself from the case, which means there is a possibility the justices could split 4-4 on their decision. If that were the case then the 9th Circuit ruling striking the 4 provisions on appeal would stand. But there’s not a guarantee that will happen. Former prosecutor Justice Sonia Sotomayor was sympathetic to the state’s case and to the arguments that an overwhelmed local law enforcement should have the ability to act. She could very well side with the neo-Confederate wing of the court on this one.
A decision on the case is not expected until late June.
Photo from US Mission Geneva via flickr.