The Supreme Court Would Like To See Your Papers

The justices say Arizona’s immigration law has nothing to do with race—except when it pleases them.

It is a truth universally acknowledged that when the chief justice of the U.S. Supreme Court tells the U.S. solicitor general in the opening seconds of his presentation that “No part of your argument has to do with racial or ethnic profiling, does it?,” we will not be hearing a case about racial profiling. That is especially true when the solicitor general agrees. Never mind that a significant amount of the discussion over the constitutionality of Arizona’s S.B. 1070, the infamous state immigration law, ends up poring over both racial profiling and Fourth Amendment law. But you can forget that; those issues are not before the court today.

 Among the provisions of the controversial law that was copied by five other states and enjoined by a federal appeals court last year is the “papers please” provision requiring state police to check the legal status of anyone stopped lawfully but who they believe to be in the country illegally. It does lead one to wonder what kinds of thin, pretextual stops might worry a Supreme Court justice. The case recycles last month’s leading Supreme Court advocates in the health care cases, with Paul Clement returning for his role as the Reasonable States-Rights Guy, and Solicitor General Donald Verrilli reprising his role of Sober Gentleman Advocate From Another Era, which at this moment in Roberts Court history feels like a guy who brings a butter dish to a gunfight. Verrilli looks like he wants to be any place but listening to Justice Antonin Scalia—the justice most likely to be pulled over for impersonating a paid Fox News contributor—analogizing the right to demand papers of suspected illegal immigrants to the Framers’ guarantee that the states’ rights to police their own borders included “inspecting incoming shipments to exclude diseased material.”

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