Run-up to SB 1070 Argument: Why the Court Should Have Ducked

The Supreme Court hears arguments in the Arizona SB 1070 case on Wednesday.  I’ll have some things to say on the merits over the next couple of days, but first a lament: why did the Court feel like it had to take the case in the first place?

It could have waited. There are a bunch of cases making their way through the lower-court pipeline. Sitting out this round would have allowed for more “percolation”, in Court-speak — the chance to get either a greater diversity of views from the lower courts or the development of a consensus among them. (It also could have waited for a case in which Elena Kagan is not recused — there is a very real chance of a 4-4 deadlock on this one, in which case the Court will have to take a do-over.)

In the interim, the facts might have changed on the ground.  The anti-immigrant campaign at the state and local level looks to be running out of steam.  SB1070 was followed by a small handful of copycat measures, notably in Georgia, South Carolina, and Alabama. But a similar law recently went down in Mississippi, and other states have also managed to deflect anti-immigrant sentiment short of  legislation. That’s not for any love of immigrants. More out of a recognition that these laws implicate substantial economic costs and risk damaging state brands — not a good strategy for moving ahead in the global economy.

The Court’s intervention runs the risk of taking this natural evolution off its tracks.  If the Court upholds SB 1070 (or, more likely, upholds some important components thereof), it will be giving a big green light to Kris Kobach et al and depriving opponents of an important argument (namely, that the laws are unconstitutional). A win for Arizona at the Court would probably spur at least a short term uptick in state and local activity.

If, on the other hand, the Court quashes SB 1070, it will energize restrictionists in Washington, running the risk of unfavorable federal immigration legislation. (More on that in a subsequent post.)

So why did the Court take the case? A veteran Supreme Court litigator who predicted this, unlike me (memo to self: do not include easily falsifiable predictions in blog post headlines!) explained it to me as a matter of economies of scale: once the Court reads into an issue like this — the kind it otherwise leaves alone for decades — it likes to tackle other aspects on a compressed timeline. Sort of a clumping theory of Supreme Court docket management.

This fits the template.  After a 30-year silence, the Court read into immigration federalism last term with Whiting v. Chamber of Commerce, which presented a much narrower question of statutory preemption.  After that practice round, the Court must feel up to speed, equipped to take on the much bigger questions presented in the Arizona case.  We’ll see.