Quick recap of oral argument of SB 1070 today

Posted by AzBlueMeanie:

This morning the U.S. Supreme Court heard the final oral argument scheduled for this Term in Arizona v. United States. The Court will consider whether four key provisions of S.B. 1070, Arizona’s immigration law, are preempted by federal law.

Justice Antonin Scalia, who frequently portrays himself as an "original intent" constructionist of the U.S. Constitution, demonstrated this is a lie by taking a radical position unsupported by the language of the Constitution or precedents in his questioning of legal counsel today. Lyle Denniston at SCOTUSblog.com recaps the oral argument from this morning. Argument recap: A choice between radical and reasonable?:

With Justice Antonin Scalia pushing the radical idea that the Constitution gives states clear authority to close their borders entirely to immigrants without a legal right to be in the U.S., seven other Justices on Wednesday went looking for a more reasonable way to judge states’ power in the immigration field. If the Court accepts the word of Arizona’s lawyer that the state is seeking only very limited authority, the state has a real chance to begin enforcing key parts of its controversial law — S.B. 1070 — at least until further legal tests unfold in lower courts.

In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally. And most of them seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.

At the end, though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive.

If the Court is to permit Arizona to put into effect at least some of the challenged parts of S.B. 1070, there would have to be five votes to do so because only eight Justices are taking part (Justice Elena Kagan is out of the case), and a 4-4 split would mean that a lower court’s bar to enforcing those provisions would be upheld without a written opinion. It did not take long for Justice Antonin Scalia to side with Arizona, and it was not much later that Chief Justice John G. Roberts, Jr., showed that he was inclined that way, too. Justice Clarence Thomas, who said nothing during the argument, is known to be totally opposed to the kind of technical legal challenge that the government has mounted against S.B. 1070.

That left Justices Anthony M. Kennedy and Samuel A. Alito, Jr., as the ones that might be thought most likely to help make a majority for Arizona. Their questioning, less pointed, made them somewhat less predictable.

UPDATE: Key passage: "Assuming that the Court does allow most, if not all, of S.B. 1070′s four sections to go into effect, that still would not amount to final constitutional clearance for any of the sections.  The case reached the Justices in a preliminary state, and there will be ongoing challenges in lower courts when the case is returned to them.   Moreover, there are challenges to some of those provisions that the Court did not consider on Wednesday, because they are not part of the federal government’s legal assault on the Arizona statute."

With each passing major case before the Court it is becoming increasingly clear that we have a constitutional crisis on our hands: the "Felonious Five" conservative activist Justices of the Court are out of control and believe they are accountable to no one, and that they have a free hand to disregard longstanding tenents of American law, e.g., judicial precedent and stare decisis, and are rewriting the Constitution and legislating their policy beliefs from the bench.

The blatant political activities that Justices Antonin Scalia and Clarence Thomas engage in are in direct violation of the Code of Judicial Conduct to which all other federal judges are subject — except Supreme Court Justices. Their unethical conduct is undermining the confidence and faith Americans have in the American judicial system. They have an "Abe Fortas Problem" (Supreme Court Justice Abe Fortas was investigated for unethical conduct that led to his defeat in the Senate for elevation to Chief Justice, and he later resigned from the Court). See Steve Benen's post at the Political Animal – Clarence Thomas’ Abe Fortas problem.

At a minimum, Congress has an obligation to conduct oversight hearings into the unethical conduct of Justices Scalia and Thomas, as it did at the time of Justice Fortas. If the evidence merits a bill of impeachment to be filed in the House, so be it. Supreme Court justices must be accountable to the people.