The Supreme Court’s decision to strike down most of Arizona’s immigration law is a cause for celebration—not least because it’s a model of how the Court can make decisions based on judicial philosophy rather than partisanship. The bipartisan majority opinion by Justice Anthony Kennedy, joined by Chief Justice John Roberts and the three liberal justices (Elena Kagan was recused) was modest and nuanced in tone and in substance—and consistent with all of the justices’ previous expressions of willingness to allow federal policies to trump state ones in cases where they conflict. If Kennedy and Roberts adhere to their vision of bipartisan nationalism in the health care decision later this week, then Obamacare may be saved; if they don’t, we will have a starkly contrasting vision of what happens when partisanship trumps the rule of law.
ON ONE LEVEL, Roberts and Kennedy’s decision that three provisions of the Arizona immigration law were “preempted”—or superseded—by federal immigration laws came as a surprise: Just last year, in U.S. Chamber of Commerce v. Whiting, Roberts had written a 5-3 decision, joined by Kennedy and the other conservatives, holding that federal immigration law didn’t preempt an Arizona immigration law that revoked the business licenses of Arizona employer who intentionally hired illegal aliens. But Roberts’s rationale in the Whiting case was that federal immigration law had an explicit exception allowing the states to enforce licensing requirements. There was no similar exception in the portions of immigration law at issue in current Arizona case prompting Kennedy and Roberts to hold that the federal immigration scheme preempted Arizona’s efforts to create new state law immigration crimes.
This broadly nationalistic vision is consistent with Roberts and Kennedy’s positions in cases affecting business interests, where they have repeatedly held that state laws and jury verdicts involving product liability, for example, are preempted by federal regulations to the contrary. By contrast, Roberts and Kennedy were willing to uphold the provision of Arizona law requiring the police to check suspects’ immigration status before releasing them because this provision didn’t conflict with federal law: States are already free to check people’s immigration status if they choose. The fact that the three liberal justices—Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor—were willing to join them on this point suggests that the liberals, too, are willing to compromise when they feel that they’re being met half way by the conservatives.
It also suggests that the Obama administration may have overreached when it insisted that this provision clashed with federal law simply because the administration had decided to oppose it as a matter of policy. “If accepted, the United States’ pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations,” wrote Justice Samuel Alito. “This argument, to say the least, is fundamentally at odds with our federal system.”
And what about the other conservative dissenters? Justice Clarence Thomas wrote a matter of fact pro-states’ rights dissent. This is entirely consistent with the position he has taken in cases affecting business interests, where he has been similarly skeptical of arguments about “implied preemption.”
But the civil and moderate tone of Kennedy’s majority opinion and Thomas and Alito’s partial dissents was in marked contrast to Justice Scalia’s hyperbole. Sounding more like a conservative blogger or FOX News pundit than a justice (as he did during the health care oral argument when he denounced the “cornhusker kickback”), Scalia quoted a New York Times account of a press conference that President Obama held about his new program to give relief to 1.4 illegal immigrants under the age of 30—a press conference held months after the Supreme Court’s oral arguments. “To say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind,” Scalia thundered. In a tub-thumping defense of states’ rights, Scalia then suggested melodramatically that Arizona would not have joined the Union if the Supreme Court’s affront to its sovereignty had been on the books.
Scalia’s reinvention of himself as a cross between Rush Limbaugh and John Calhoun is entirely inconsistent with his record. He had previously cast himself as a Hamiltonian not a Jeffersonian; and for much of his career, he has championed broad federal power over matters involving economic regulation and the preemptive effects of food and drug laws. But, as Adam Liptak reported, Scalia recently published a book in which he denounced the 1942 New Deal-era decision Wickard v. Filburn for “expand[ing] the Commerce Clause beyond all reason,” despite the fact that he had respectfully applied the decision in his previous judicial opinions. How does he explain this about-face? In the preface of the book, Scalia simply writes that “wisdom comes late.” Far from displaying wisdom, Scalia’s betrayal of his previously expressed nationalism suggests that his partisanship is getting the better of his constitutional principles. It also calls into question the charitable judgment of Scalia defenders who predicted he would vote to uphold Obamacare, including Laurence Tribe, who had previously argued that “to imagine Justice Scalia would abandon” his broad understanding of national power “because he was appointed by a Republican president is to insult both his intellect and his integrity.”
Kennedy ended his opinion in the Arizona case with a call for “searching, thoughtful, rational civic discourse”—a gesture that was in stark contrast to Scalia’s hyperbolic dissent. But the contrast usefully framed the stark choices that the Court faces in the health care decision on Thursday. Kennedy and Roberts might embrace the same vision of bipartisan nationalism in both cases, holding that Congress has the authority to regulate divisive issues involving immigration and the economy that the states are unable to solve on their own. If Kennedy and Roberts choose to remain true to their previously expressed judicial philosophies, they could offer the country a model of the Supreme Court acting like a neutral court rather than two partisan blocs. And to the degree that the public respects the Court when it views the justices as being guided by judicial philosophy rather than partisan commitments, this would be good for the Court and good for the country.
If, by contrast, Kennedy and Roberts betray their previously expressed principles, striking down health care by a 5-4 vote along party lines, they will appear just as partisan and unrestrained as Scalia did on immigration. Predictions at this point are useless, but hope springs eternal. Kennedy and Roberts’ impressive performances in the Arizona case give us a vision of both justices—and the Court—at their best.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.