Supreme Court Decision on SB 1070: Winners and Losers


The first question I’m being asked about the Supreme Court’s decision today on the constitutionality of Arizona’s immigration law SB 1070 is, “Who won?” On its face, the split decision has no clear winning side. Three provisions of the new law were ruled unconstitutional, but the most notorious, the “show me your papers” clause, was ruled constitutional—at least for now. Was this a vindication of immigrants’ rights or an assault on them?

A lot of analysis published elsewhere is looking at the particulars of the decision itself. A better way of determining winners and losers is to look at how each judge voted. The three liberals (Justice Kagan recused herself) all voted for the decision as did the one swing voter (Kennedy) and Chief Justice Roberts. The three most conservative all dissented. This tells us that this was a center-left compromise. The court struck down the three provisions that were most likely to lead to a hodgepodge of state-based immigration laws. Meanwhile, they allowed one provision, the mandate that police ask for immigration papers from those they suspect of being undocumented, to stand.

Now, lets look at who won and who lost:

The first loser is Kris Kobach, the author of the law. This anti-immigrant activist has convinced four states that they can make their own immigration laws. The decision clearly says the opposite. According to the court, only the federal government can make an immigration violation. States are barred from doing so. So this shows that Kobach’s idea that states can make their own immigration laws is a lot of hokum. Arizona politicians like Jan Brewer share in the defeat.

The second loser is the Arizona taxpayer. The state has been tied up in controversies around SB 1070 for two years and will continue to be so. While most of the law was held to violate the constitution, the one provision that will go into effect will be challenged within weeks of the first time it is used. The Supreme Court said that while the “show me your papers” clause is not inherently unconstitutional, its enforcement is open to challenge if it is pursued in a biased way. With Joe Arpaio as the state’s most prominent lawman, we won’t have long to wait for the nastiness to begin and legal action to follow.

The third loser is Arizona’s Latinos. They will be harassed by people like Arpaio, at least until a new suit showing a pattern of discrimination is filed.

The fourth loser is the good cop trying to work with immigrant communities to crack down on real crimes. The provision that was allowed to stand mandates that police question people about their immigration status, even though they can’t arrest anyone, since there’s no Arizona state law against being undocumented. As a result, cops have been put in a tough spot.  The law essentially requires that they harass brown people just for the sake of harassment, alienating whole communities.

The big winner is the concept that states cannot make their own immigration laws. This maxim has been in place for 150 years, and today’s decision further reaffirmed that precedent.

Feature image courtesy of NAKASEC via Flickr.