To paraphrase my beloved, It’s not that I’m a pessimist. It’s that I’m practical. It’s why I am not alarmed by reports spinning the questioning of the Justices as signs in favor or displeasure with Arizona’s S.B. 1070. While it would be wonderful to say goodbye to parts of the anti-immigrant law that birthed others, it would not change federal law which essentially functions in the same way.
In the coverage of last week’s hearing, organizations and media outlets tried to feel out what side the Justices were leaning towards based on the questioning. Interestingly enough there was no consensus as to what the line of questioning meant. Some organizations felt that the questioning revealed a sympathy towards Arizona State Law. Others expressed concern about the absence of a discussion of race within the questioning. Some sources predicted a mixed result, with some provisions of S.B. 1070 standing while others would not. Very few sources that I saw were able to muddle through the complicated proceedings in a way that was honest and went beyond advocacy for a specific outcome.
S.B. 1070 is a horrible law but let me be super clear, while S.B. 1070 is absolutely about race, ethnicity, and nationality the Supreme Court is not deciding on if the law violates the civil rights or human rights of individuals. It is deciding on if four specific parts of the law attempt to carry out what the federal government should be doing, enforcing immigration policy. If the case were about racial profiling, then national immigration enforcement policy and practice would also end up being scrutinized. This would include the excessive force of border patrol along the southern border, this would include the use (or not) of prosecutorial discretion, and the enforcement priorities of national programs like Secure Communities. To admit that S.B. 1070 is racist and relies on racial profiling, would mean to admit that policing priorities overall across the county are racist and rely on racial profiling. It is troubling to see liberal institutions insist that racial profiling is out of character for the United States when really it has been a hallmark.
A ruling is expected in late June.