Monday, July 9, 2018
With President Trump scheduled to nominate a Supreme Court Justice later today, the high Court is on the minds of many. The new Justice will replace Associate Justice Anthony Kennedy, widely identified as the key swing vote on the Court.
SCOTUSBlog has been running a symposium on Justice Kennedy's jurisprudence. The contribution by Pratheepan Gulasekaram critically analyzed immigration legacy. His conclusion: "Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies." This analysis is persuasive.
In addition, as I have commented, Justice Kennedy wrote few important immigration opinions, a fact that seems odd given that he came from the Ninth Circuit, which long has had many immigration cases on its docket. Indeed, when Justice Kennedy was a Ninth Circuit Judge, Judge Stephen Reinhardt in 1985 issued a major asylum decision, which the Supreme Court later affirmed. INS v. Cardoza-Fonseca (1987).
Although perhaps more of a federalism/federal supremacy as opposed to an immigration case, the Court's decision in Arizona v. United States, which Justice Kennedy wrote, exemplifies Justice Kennedy's approach to immigration identified by Professor Gulasekaram. The Court decided the case at a time when many states were passing state immigration enforcement laws in an attempt to push the Obama administration to increase enforcement efforts. The Court found much of Arizona's S.B. 1070 to intrude on the federal power to regulate immigration. At the same time, the Court allowed to go into effect the "show your papers" provision, which required state and local police to verify the immigration status of persons they suspected of being in the United States unlawfully; civil rights advocates claimed that the provision would result in racial profiling.
The decision warrants a careful look, as it had major impacts and is deeply relevant to the Trump administration's challenges to "sanctuary" states and cities. In , Justice Kennedy's majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor. The majority largely agreed with the Ninth Circuit and invalidated three core provisions of SB 1070. A five-three Court found that federal immigration law preempted sections 3 (creating a state crime for failing to carry an alien registration document), 5(c) (making it a crime under state law to work without authorization), and 6 (authorizing the warrantless arrest of persons believed to have committed an offense making them removable from the United States).
Justice Kennedy's majority opinion upheld one provision of SB 1070. Section 2(B) of the law requires state and local law enforcement officers to verify the immigration status of persons who they reasonably suspect of being in the country in violation of the immigration laws. Refusing to invalidate the provision on its face, the Court left open the possibility of challenges to its application by Arizona law enforcement authorities in individual cases.
Not able to agree among themselves, Justices Scalia, Thomas, and Alito all filed separate opinions concurring in part and dissenting in part. Most jarring among the opinions was Justice Scalia's, who would have upheld SB 1070 in its entirety. It exhibited a strident ideological tone relatively rare in a Supreme Court opinion.
As noted above, the Court's upholding of section 2(B) of SB 1070 generated considerable concern and criticism. Popularly known as the "show your papers" requirement, this provision, which can be found in many of the new immigration enforcement laws passed by the states, mandates state and local police to verify the immigration status of anyone about whom they have a "reasonable suspicion" of unlawful presence in the United States. Critics worried that implementation of section 2(B) would result in increased racial profiling of Latina/os by state and local officers in criminal law enforcement. By focusing on the technical federal preemption challenge and reserving the possibility of future "as applied" challenges, Justice Kennedy's approach allowed the Court to sidestep the most frequently voiced civil rights concern with SB 1070.
However, the Court's decision in Arizona v. United States also led to the invalidation of a number of state immigration enforcement laws that allegedly violated the civil rights of Latinos. See, e.g., United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1240 (11th Cir. 2012). The Court's decisions essentially stopped those state efforts in their tracks.
In short, Justice Kennedy's immigration legacy includes Arizona v. United States, which led to mixed results for the immigrant community. The Court focused on protecting the power of the federal government over immigration as opposed to the rights of immigrants.