How to Break the Immigration Policy Impasse (5): The Supreme Court Speaks … but in Tongues

By Stanley Renshon on July 5, 2012

Many Americans think of the Supreme Court as the final arbiter of the constitutionality, and therefore political legitimacy, of legislative and executive policy and behavior. That, however, is the 8th grade civics class version of a much more complex reality.

When considering the court's decisions, Americans are used to thinking in broad summary strokes and striking finality. Court strikes down! Court affirms!

We use the language of strong narrative results because one side or the other has "won", even though the decisions often are split and the basis of the legal reasoning involved is variable.

Supreme Court doctrine, of course, evolves over time, as majority sentiments and even dissents are fashioned into new findings by justices with different sensibilities and understandings. New economic, political, or social circumstances also can require changes in or the development of legal precedent. A particular court may rule narrowly or broadly on the cases that come before it. And finally, even somewhat arcane court procedures like the distribution of opinion writing and the possibilities of strategic voting can have an impact.

Yet Americans of all political persuasions would be startled to read a headline in their morning paper that read "Supreme Court Affirms Key Element of Arizona Immigration Law 5-3, but Invites Litigation to Overturn Their Decision".

That's not the headline that greeted the country on the day after the Supreme Court decided the Arizona immigration case, but it does in essence reflect what the decision said.

The Washington Post led with this headline: "Supreme Court upholds key part of Arizona law for now, strikes down other provisions".

Yes, the headline is correct and does use the words "for now" to characterize the court's ruling. The court ruled that the provision requiring state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally does pass constitutional muster.

However, Justice Kennedy also wrote:

If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. [emphasis added]

The court and the public will not have to wait long. Another federal lawsuit already filed in Phoenix (Friendly House v. Whiting) alleges that the Arizona law will subject people to investigations after being stopped on the basis of their appearance and accent.

The Supreme Court decision in the Arizona case specifically excluded consideration of "racial profiling" accusations. Reuters reported that "Civil rights advocates said that if the high court upholds the Arizona measure on the grounds that federal law does not pre-empt it, they will likely ask the judge hearing the Friendly House case to issue an order blocking the law based on the civil rights claims. 'Whatever happens at the Supreme Court, this is just the first inning in a very long ballgame', said Karen Tumlin, managing attorney in the Los Angeles office of the National Immigration Law Center and among those at the lead of Friendly House v. Whiting."

So, the Supreme Court delivered what can only be called a mixed and equivocal decision. It affirmed a core part of the Arizona immigration law by not taking up the question of whether questions regarding immigration status amount to racial profiling, and not surprisingly opponents of the law already have settled on a case that will require the Court to take up the Arizona law again.

That august sage of existential wisdom, Yogi Berra once said, "It ain't over till it's over." Had he been referring to immigration policy and the Supreme Court, he might have said with a sigh, "It ain't never really over."

NEXT: How to Break the Immigration Policy Impasse (6): The Consequences of Stalemate and Wars of Attrition or view a list of the entire series.