Key issues to watch in SB 1070 hearing



The U.S. Supreme Court's nine justices are among the most closely scrutinized public figures in the world. Their every question, statement and legal musing is analyzed and used to predict future rulings.

While some of their decisions are lofty legal debates that seem to have little impact on anyone other than law students, others change Americans' daily lives. The high court ruling on Arizona's immigration law Senate Bill 1070 will fall into the latter category, potentially changing the lives of undocumented immigrants and their families in states across the country.


The justices are often divided into conservative and liberal camps, with Justice Anthony Kennedy moving between the two.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan are considered liberal, and all were appointed by Democratic presidents.

Justices John G. Roberts Jr., Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas are considered conservative, and were appointed by Republican presidents.

Predictions on how the justices may rule in the federal government's challenge of SB 1070 are all over the board. Some experts predict they will again fall into liberal and conservative camps. Others say this is an issue that transcends political pigeonholes.

One twist in this case is that Kagan has recused herself because she was U.S. solicitor general when the federal government brought the lawsuit against Arizona. That weakens the "liberal" bloc and creates the possibility of a 4-4 tie. In a tie, the lower court ruling halting parts of the law from going into effect stands. But because there is no prevailing side, the ruling does not apply to cases in states outside the 9th Circuit appeals court jurisdiction, such as Alabama.

Paul Bender, a professor at Arizona State University's Sandra Day O'Connor College of Law, said this case will be tough for the federal government to win. If the justices break down along the conservative/liberal block, he said, five -- including Kennedy -- could lean toward allowing the state to enforce SB 1070. Or Kennedy could go the other way, and there's the 4-4 tie and no winning opinion, he said.

"The only way the liberals can get an opinion on their side in this case is to get the people from the conservative side," Bender said. "Chances are, at most, one of them is going to side with the federal government and that would be Kennedy. But anything's possible."


While immigration often seems to break down along simple conservative-liberal lines, some experts caution that the case could bring surprises, because it centers on the question of federal pre-emption and whether federal legal authority trumps state decisions.

Bender said this court does not have as much of a record of rulings in the areas of immigration and pre-emption as it does in other areas such as free speech, abortion or equal protection. That makes predictions difficult.

"Is immigration something where people like Roberts or Alito or Scalia or Thomas might take a position that we generally think of as liberal because immigration is different?" he asked. "This issue really is not liberal versus conservative. This issue is federal authority versus state authority."


University of California-Davis School of law Professor Jack Chin, who studied SB 1070 while a professor at the University of Arizona James E. Rogers College of Law, said Scalia could be as much of a wild card as Kennedy.

"Scalia has been very, very strong in immigration cases on talking about the importance of prosecutorial discretion. He says this is an important federal executive power, and the courts can't get involved," Chin said. "So if the courts can't get involved, it would seem that the states also can't get involved."

Chin said Scalia is big on the idea that the president has the right to carry out federal law.

"And to some degree, one would expect Alito and Roberts to be sympathetic to that too," he said. "As a general matter in national-security and foreign-policy cases, they tend to support the power of the United States."

And he said he doesn't have a strong idea of how Thomas may fall on the issue of federal power in immigration enforcement.

"It's possible that on some of the issues here, it could be 8-0 (against Arizona)," he said. "I've never been one of those people who said the U.S. Supreme Court is going to come in and rescue SB 1070 from the 9th Circuit."


University of California-Davis School of Law Dean Kevin Johnson said a 4-4 tie is a distinct possibility.

"In my mind, the swing vote most likely to make this a tie is Justice Kennedy," Johnson said. "It's hard to tell how he's going to come out here."

He said Kennedy will likely ask questions about how SB 1070 would work on the ground if allowed to go into effect.

"He's likely to probe very deeply about how the law will be applied, how it conflicts with federal law or doesn't conflict with federal law," Johnson said. "There is a chance he may ask some about the reasons Arizona passed this law and its intent."

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