The Supremes Look At S.B. 1070: Not About Profiling!

Based on the initial oral arguments, it appears unlikely the U.S. Supreme Court will strike down Arizona’s influential S.B. 1070 which enlists state and local law enforcement officers to enforce federal immigration laws. Portions of the law might not survive, however, and it appears the Court might make its validation strictly contingent on assurances the state is making that it will implement the law without usurping the federal government’s power to determine the ultimate treatment of undocumented people arrested under its authority. As is generally the case, Anthony Kennedy could be the swing vote in the decision, though oral arguments indicated that even the Court’s “liberal bloc” is skeptical about the federal government’s case.

But something that Court-watchers need to keep in mind is that a central issue in the court-of-public-opinion debate over Arizona’s laws and those elsewhere it has inspired–the likelihood that law enforcement officers will be encouraged or even forced to engaged in ethnic “profiling” in determining whether to suspect an arrestee’s immigration status–is not before the Court at all.

Here’s Lyle Denniston of SCOTUSBlog on this key point:

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 cosnider on Wednesday, because they are not part of the federal government’s legal assault on the Arizona statute.

The most important of those remaining challenges is the claim that at least two of the four sections give police authority to arrest and detain people just because they look like foreigners — in a phrase, “racial profiling.” While some of the amici in this case did raise that in their briefs, the federal government has studiously avoided the claim. And, the moment that Solicitor General Donald B. Verrilli, Jr., took his place at the lectern to make the U.S. challenge, Chief Justice Roberts sought to make sure that he did not talk about “racial profiling.”

Roberts said: “Before you get into what the case is about, I’d like to clear up at the outset what it’s not about. No part of your argument has to do with rcil or ethnic profiling, does it? I saw none of that in your brief.” Verrilli said that was correct. But the Chief Justice wanted to be sure: “Okay. So this is not a case about ethnic profiling.” The Solicitor General answered: “We’re not making any allegation about racial or ethnic profiling in this case.”

Because the feds are currently going after S.B. 1070 on the constitutonal issue of alleged state usurpation of federal immigration enforcement authority, they won’t “go there” to the profiling issue, at least not at this stage of the legal battle. But it could well come up in a future case, as it will come up in the broader political debate over immigration policy that this Supreme Court review may well reignite.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.