Online symposium: A win for the government and for the SG

This is the seventh post in our online symposium on Monday’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070.  During the next few days, we will be posting a series of essays on the decision by lawyers and scholars in the field. Andrew Pincus, a Partner at Mayer Brown, has argued twenty-three cases before the Supreme Court. He is a former Assistant to the Solicitor General (1984-1988).

The blog will have a bunch of interesting posts on the implications of yesterday’s Arizona decision from a variety of immigration law experts.  I’m not even going to try to add to that discussion.

From the somewhat different perspective of a Supreme Court advocate (albeit one who represented a group of amici supporting the government’s position), however, the ruling does trigger a few thoughts.

First, this is a big win for the United States.  When certiorari was granted, many observers thought that a majority of the Justices were inclined to overturn most of the Ninth Circuit’s decision; otherwise, why not wait for appellate rulings on the state laws similar to Arizona’s that were working their way through the federal courts?

Instead, the Court today endorsed the legal framework advocated by the United States – that the federal government has broad constitutional authority in this area and that federal law establishes a comprehensive and pervasive regulatory scheme.  It found three of the four Arizona law provisions invalid on their face.

Although the Court did not invalidate the fourth part of the law, which requires police officers to determine the immigration status of anyone stopped or arrested (if there is a reasonable suspicion that the individual is unlawfully present within the United States), it flagged some significant problems that undoubtedly will be the subject of future litigation. The Arizona courts received a pretty clear message that this provision must be narrowly construed:  officers may not detain individuals solely to verify their immigration status, and detention may not be prolonged to complete the immigration inquiry.  Also, the Court pointed to the Arizona law’s specific statement that it may not be applied in a discriminatory manner or in a way that otherwise violates the Constitution – which opens the door to future challenges.  The Court’s opinion thus leaves for the future many of the arguments that the government and its amici advanced.

Second, today’s decision confirms what most advocates have long understood:  it is impossible to predict the outcome of a case on the basis of what happens at argument.  That is especially true of today’s Supreme Court, in which some Justices are more active, and more pointed, questioners than others; and where most of the relevant analysis is contained in the briefs with only a few discrete points typically highlighted during the argument.  In cases on which the Court is likely to be divided, the oral argument virtually always provides an incomplete picture of how the Justices view the case.

Third, judging an oral argument’s effectiveness is a treacherous business.  Following the Arizona argument, Solicitor General Donald Verrilli, Jr., was subject to the same kind of second-guessing that accompanied the healthcare arguments.  The Daily Beast headline read “Solicitor General Verrilli Fumbles on Immigration at the Supreme Court.”  Jeff Rosen opined that “Verrilli failed to make the most convincing constitutional argument in support of his position.”  And those were the nicer comments.

But Verrilli brought home an important victory for his client.  We can’t tell whether it was the briefs, or the argument, or some combination of the two (and we won’t know for many decades, until the current Justices’ papers are opened to the public – and maybe not even then). What we do know is that it was the legal principles on which Verrilli focused that convinced five members of the Court in a very hard-fought, high-profile case.  And that is a pretty effective day’s work for any Supreme Court advocate.