Major Decisions By The U.S. Supreme Court

MS. DIANE REHM

10:06:56
Thanks for joining us. I'm Diane Rehm. Yesterday was one of the last days of the U.S. Supreme Court's current term. The justices ruled to curb Arizona's anti-illegal immigration policies but let stand the law that requires law enforcement to check the status of anyone suspected of being illegal. The court also struck down a Montana law that limited campaign spending and ruled that juvenile criminals cannot be given mandatory life sentences without parole.

MS. DIANE REHM

10:07:36
Joining me in the studio to talk about yesterday's key decisions, Jeffrey Rosen of the George Washington University, Fawn Johnson of National Journal and Michael Scherer of Time Magazine. I'll be interested in your comments, your questions. Call us, 800-433-8850. Join us by email at drshow@wamu.org, or on Facebook or Twitter. Good morning to all of you.

PROF. JEFFREY ROSEN

10:08:13
Good morning, Diane.

MS. FAWN JOHNSON

10:08:14
Good morning, Diane.

MR. MICHAEL SCHERER

10:08:14
Good morning.

REHM

10:08:15
Jeffery Rosen, the court struck down three key provisions of the Arizona immigration law. Explain what they did.

ROSEN

10:08:27
Yes. There were four provisions in the law, and the court struck down three of them. The first one requires the police to check the immigration status of people whom they detain before releasing them, and the court said that that was permissible. It was not clear that that provision would be pre-empted, and essentially that was the core part that was upheld.

ROSEN

10:08:50
But the three parts of the law that were struck down were those that made a state law crime of being in the country illegally, a ban on working in the state and the warrantless arrests of individuals who are believed to have committed a deportable crime. So the most important thing the court said was that states may not create crimes, immigration crimes, when the federal government has decided not to do so and, in particular, requiring people to carry papers is something that the federal government had decided not to require.

REHM

10:09:19
But explain the part that the court upheld.

ROSEN

10:09:24
Yes. This was called the show your papers provision although it doesn't, in fact, require the papers be shown. It allows police officers, when they detain someone for any offense, to check their immigration status and take reasonable means to do so. Now, states have always been free to call the immigration authorities if they choose, but this provision requires the states to do so.

ROSEN

10:09:47
There was a controversy about how long people would be detained while the immigration status was being checked. Can you be stopped on -- for jaywalking, for example, and held longer than you'd ordinarily be? Or Justice Kennedy wondered, as a majority opinion, if you were arrested, could the court -- could the police actually keep you in the police station longer than they would otherwise have done in the course of checking your papers?

ROSEN

10:10:11
Kennedy suggested that it might be unreasonable to detain people longer than they would've been detained. He suggested there could be challenges to this provision both on the grounds that people were being held for too long and also, most importantly, on the grounds of racial profiling. There is a provision in the law that forbids racial profiling. But since it hasn't gone into effect, there is no evidence of whether racial profiling was taking place. And Kennedy suggested that if evidence arose in the future that people were being stopped based on their race and that could be a challenge.

REHM

10:10:40
So, Fawn Johnson, why do you think the court upheld that show-me-your-papers provision?

JOHNSON

10:10:48
Well, it's actually not all that different from what police officers are doing nowadays, and I didn't understand the full extent of this until I went down to Tucson in the area around the southern border, Nogales, and it was very close to the border. And I spent some time with some of the local police officers there, and essentially, they told me that this is what they do on a routine basis anyway.

JOHNSON

10:11:12
It is probably not something that you would do, say, in Ohio or some other places that don't have as much of a population of immigrants both legal and illegal, but it is something that is currently already a routine practice, and it's perfectly allowable in -- throughout the entire country. That what Arizona did, which is a little bit different, is they said, we want this to make this a part of the routine check.

JOHNSON

10:11:35
But they also put in a number of protections such that it has to be reasonable, you can't unreasonably detain somebody for longer than you would ordinarily for any other kind of stop. It has to be in the context of some other violation. You know, jaywalking is one example, but how many does anyone been detained for jaywalking? And I think that that's the reason why the court upheld this particular provision.

JOHNSON

10:11:58
The thing I was interested in was that they did leave open the possibility for other court challenges on the decision based on civil rights, and that's gonna be the next step. There's already a number of civil rights groups that have sued both Arizona and other states that have similar laws, alleging that this particular type of provision is just opening the door of racial profiling.

REHM

10:12:18
So from your visit there to Arizona, talking with police, talking with immigrants, how do you feel the immigrants themselves may encounter this particular provision?

JOHNSON

10:12:34
Well, this is something that -- the best examples that I have actually come from the civil rights community that as soon as the Arizona law was passed, even though this particular provision was never allowed to go into effect and the one -- the other -- the three that the court struck down never will be allowed to go into effect, apparently it just caused a huge panic among the entire immigrant community in Texas and in Arizona.

JOHNSON

10:12:58
They -- the civil rights groups who are involved in these lawsuits that are coming up set up emergency hotlines that were on call 24 hours, and they said that the calls they were getting were just heartbreaking. They have stories. They have named plaintiffs in the cases that are coming up that talk about people who have been detained for things like riding a bicycle without a light, for example.

JOHNSON

10:13:21
Somebody who has -- I believe one of the named plaintiffs in one of these cases is someone who has been here since they were a child. But for the reasons involving the immigration system, which is difficult -- involving a grandmother dying and other things like that -- the person is technically undocumented.

JOHNSON

10:13:37
They are in a kind of legal limbo, and this person was detained for something along the lines of a bicycle. And this is the kind of stories that they're bringing forth. They claim that there are hundreds of these stories, and that those are only the ones that they know about. The other thing that I have heard from these same folks is that the fear that the law instituted in the community was almost immediate.

JOHNSON

10:14:00
And if you look at some of the other states that have passed similar laws, Alabama is a particularly egregious example of this because they also include a requirement that schools inquire about the legal status of parents and children. It's made them all very nervous. All that said, there's no legal proof yet, and the court didn't talk about this that this is actually an infringement of civil rights, but I predict that the next year or two will be consumed with that kind of conversation.

REHM

10:14:29
And, Michael Scherer, The Wall Street Journal's editorial called this a modest policy victory for the Obama administration. How do you see it?

SCHERER

10:14:42
Well, what was interesting yesterday was that everybody was declaring victory in the hours after this. You had Gov. Jan Brewer, who's a big defender of this law, coming out and saying that Arizona's actions have been vindicated by the court. You had John McCain and Jon Kyl, the Republican senators, also making supportive statements. Even some of the drafters are saying this was a victory.

SCHERER

10:15:03
And then you had on the other side the administration taking some cautious victory laps of its own, pointing out that their main argument here, which was that states should not be in the business of making their own immigration law, had basically won the day. I think on balance, it is more of a victory for the Obama administration than it is for the drafters of this law that the whole...

REHM

10:15:27
Why?

SCHERER

10:15:27
The whole purpose of this law, the reason the Arizona legislature and the governor got involved in this was they felt the federal government was not enforcing immigration law like they wanted to. And that they would then step into that vacuum and enforce the laws on their own. And by and large, the court had said to Arizona, now you are not allowed to do that. The federal -- on matters of immigration, federal law is supreme.

SCHERER

10:15:51
You have to step aside and basically follow what the federal government is doing. The one exception is this show your papers provision, but as we've just discussed here, it's not really an enforcement mechanism. It's almost like an operational device. It wouldn't lead to deportations. You know, the issues in Arizona will continue. Another reason is that a lot of the problems there weren't directly connected with this law.

SCHERER

10:16:14
It was just police behavior independent of the law. There's a ongoing fight between the Justice Department and Sheriff Joe Arpaio in Phoenix -- in the Phoenix area about just the police practices, which include, you know, allegations that he would just -- that his deputies would just follow people around if they looked a certain way.

SCHERER

10:16:31
Or -- I mean, when I was in Phoenix a few months ago, I had a member of the Republican Party there, a pastor tell me that outside her church, which has a large Hispanic population including a large undocumented population, on Sundays, they would see the sheriff's deputies just parked across the street as they interpret it to be an active intimidation, a sort of like, we see you.

SCHERER

10:16:53
We know you're there. That's sort of stuff is still going on and really has sort of poisoned the well there and is independent from what this specific law allowed to take place.

REHM

10:17:02
And, Jeffrey Rosen, what does this decision say about the court itself?

ROSEN

10:17:10
Well, it is a remarkable vision of how successfully the court can actually act as a court and avoid these polarizing decisions that are five to four along partisan lines. Chief Justice Roberts famously said that he wanted this kind of decision where justices from both sides of the political aisle could come together and converge on narrow rulings. Here, he and Justice Kennedy did precisely that.

ROSEN

10:17:33
Kennedy with Roberts' support and that of the three liberals had a modest tone. He was consistent with his previously expressed commitment to broad national power. He thoughtfully distinguished among the different provisions and upheld the least threatening but struck down the other ones. And in some ways, I read this decision and I thought, my gosh.

ROSEN

10:17:55
If the court does this in the health care case on Thursday, if we can find a way with perhaps the same majority to have this bipartisan coalition to be narrow for both sides to give a little bit, in this case, it was the liberals agreeing that the show your papers provision had to stand, suddenly, the justices are acting like judges and not like pundits.

ROSEN

10:18:13
And when you contrast the majority decision with Justice Scalia's remarkable descent where he was writing more as a blogger almost than a justice, you get a vision of what the bad partisan result could be.

REHM

10:18:27
Jeffrey Rosen of the George Washington University, Fawn Johnson of National Journal magazine, Michael Scherer of Time Magazine. Short break here. I look forward to hearing your questions and comments.

REHM

10:20:04
Jeffrey Rosen, just before the break, you were talking about the Supreme Court's decision on the Arizona immigration law as really a triumph for the court itself coming together as a reasonable body. What does this portend for other decisions or is it isolated?

ROSEN

10:20:33
Well, of course, we'll see on Thursday with the health care case. But this just shows why -- that Justice Roberts did mean it when he said it was bad for the court and bad for the country when the justice is divided along ideological lines, five Republicans against four Democrats. There have been recent polls suggesting that confidence in the court goes down when people perceive it to be a partisan body.

ROSEN

10:20:54
The justices are concerned about that and concerned about their legitimacy, and this is a extremely high-profile case where Roberts did something that people thought he wouldn't, that he was willing to compromise in order to avoid that sort of polarization, and the liberals did the same thing. And really, Roberts talked about a court acting as a court, and that's what happened here. They were able to converge on this common outcome.

ROSEN

10:21:17
I mentioned the Scalia dissent because this phenomenon of judges sounding more like pundits or bloggers than judges was what Scalia showed. He cited a news conference that the president gave after the decision came down. He was quoting New York Times accounts. He was openly questioning the administration's honesty when it said that it was trying to save money for immigration enforcement. He was like a guy in his armchair watching Fox News and basically just spouting off.

ROSEN

10:21:46
And you see other examples of this with lower court judges basically refusing to follow Supreme Court precedent sort of acting like pundits. And essentially, when the court doesn't act like a court, almost every justice feels entitled to predict the way the law should be or just spout off on his own. And it's very, very important, I think, as the majority shows to avoid that outcome.

REHM

10:22:06
Michael Scherer.

SCHERER

10:22:07
Yeah, you know, I read the Scalia dissent first yesterday, and I thought it was remarkable. It's an incredibly fun read. It's well-written in a way that most Supreme Court opinions are not actually fun to read. But it was also -- it reminded me of the rants you have on Aaron Sorkin, television shows and TV. He was acting smarter than his audience, and he was really belittling his opposition throughout.

SCHERER

10:22:31
And the part -- and I actually wrote down this quote, he's describing what the president just did with the DREAM Act allowing a large population of kids who came here without papers to stay and work. He said, "The husbanding of scarce enforcement recesses -- resources can hardly be the justification for this." And what he's doing there is really very much saying that was the justification for what the president did.

SCHERER

10:22:54
That's the stated reason they did it, that we have scarce resources, we're gonna prioritize these resources. He's calling the president a liar there. I mean, he's saying, look, you can't justify this, but what you're doing -- and he's doing it in a way that really has nothing to do with the matter at hand, which was this Arizona law. I mean, this is -- it was a very tangential point he was making, and it was. It's a remarkable read. I would encourage your -- the listenership out there to pull up opinion and spend some time with it.

REHM

10:23:21
Fawn.

JOHNSON

10:23:22
He also cited the constitutional convention, I noticed that, and posited that all of the delegates to the constitutional convention would have run away had they seen this decision.

ROSEN

10:23:33
And Arizona would never have joined the union, he said, as well.

JOHNSON

10:23:35
That's right. I also -- I was struck by the -- with the beginning of the opinion. He was basically citing laws that were passed in 1800s on immigration when they were referring to Chinese immigrants as coolies. The one thing that I felt when I read this decision not necessarily looking at it from a legal context, but from the context of immigration is that you just see how much it strikes an emotional chord on both sides of the issue.

JOHNSON

10:24:03
And I think Justice Kennedy in riding the majority opinion, he reflects both sides of this. He talks about the humanitarian troubles, the difficulties with the people who come here and try to find jobs. He cites, you know, the -- I believe, at one point, he cites an elderly veteran who has lived here for a long time. But then he also cites the incredible difficulties that are being faced by Arizona and Texas and some of the other border states.

JOHNSON

10:24:28
This is -- but you also see some of his emotion coming through, most notably in Justice Scalia's opinion, where he actually referred to the "evils of illegal immigration." And it just -- to my mind, I'm used to hearing a lot of vitriol. I cover Congress. I cover politicians about immigration. They have -- they can't speak rationally about it ever since the comprehensive immigration bill died in 2007.

JOHNSON

10:24:56
And so I'm used to that, but I do not expect to see any of that sneak into the Supreme Court decisions. And it didn't, not necessarily, but then there were few places where you start to see it come in, and all that says to me is that this is a tough issue even if you're the most strict of legal scholars who's only reading a document.

REHM

10:25:16
Here's an email form Laurie, "I never understood if everyone if Arizona must carry citizenship papers with them at all times. I'm sure many of us are confused and don't really understand this law. Frankly, I would not travel to Arizona. I wouldn't want to deal with this confusing situation and risk having to spend time in jail. So who does and who does not have to carry papers with them at all times?" Michael?

SCHERER

10:25:52
Well, one of the provisions that the court threw out was a provision that would've required some sort of ID, especially from undocumented immigrants, which is sort of an odd requirement since undocumented immigrants don't have documents. That was thrown out. So that is no longer the case that you need to always have that piece of paper with you. However, the part that was kept in is the part we talked about, the papers please provision, which allows, if you are stopped by a police for another reason, them to inquire about your immigration status.

REHM

10:26:19
And the problem there being that you can be stopped by other sort of way-out reason.

SCHERER

10:26:25
Other things, right.

JOHNSON

10:26:27
And if you're not driving, that you might not necessarily have your driver's license with you and -- or you might be underage and not have a driver's license, which means that you're not committing any crime if that is the case. And that's part of the problem with that particular provision.

REHM

10:26:41
And here's a tweet, "What does this ruling mean for the state of Alabama, which we mentioned, and E-Verify?" Jeffrey.

ROSEN

10:26:52
So Alabama has the toughest immigration law in the country. Its provisions include requiring schools to determine the legality of new students. It makes it a crime for illegal immigrants to seek jobs. It penalizes anyone who hires them. This law has been challenged by the Obama administration. The Supreme Court ruling -- and I'm relying on The Washington Post for this -- it reinforces the police checks, but it strikes down the section making it a crime for illegal immigrants to seek work.

ROSEN

10:27:18
So part of the Alabama law will survive and part will be struck down, and The Post notes that there are a series of states -- Arizona, Georgia, Utah, South Carolina, Indiana, Colorado -- all have tough anti-immigration laws. Some provisions of those laws are now in constitutional question, in particular those making it a state crime to be in the state illegally. But there are many of these provisions that remain on the books and all of them, of course, will be challenged.

REHM

10:27:42
Now, you also heard from Gov. Romney, now the presumptive nominee for the Republican presidential campaign. His camp has said that the decision points out President Obama's failure to enact comprehensive immigration legislation. But tell me what Mr. Romney's plan is, Michael.

SCHERER

10:28:10
He didn't wanna say initially yesterday, and this is actually -- it was a very funny day covering the Romney campaign yesterday. It's gotten to the point now where you could ask Gov. Romney what he wants for breakfast and he will respond something like, the president has failed to lead on this issue. The -- that was his initial statement when this came out. He did say later in the statement that he does believe states have a right to enforce laws to protect themselves.

SCHERER

10:28:35
But then his campaign said, we're not gonna have further comment. It was ironic because the campaign had chartered a jet for the traveling press that day because they were expecting a health care ruling, which Gov. Romney really does wanna comment on. Later in the day, during a fundraiser in Arizona, of all places, Gov. Romney did say that he wished the court had gone further to protect the right of Arizona to enforce its own immigration law.

SCHERER

10:28:58
So he kinda put himself on the record at the end of the day as saying that he was disappointed with the court decision that he wished it had been closer to, you know, I guess, the Scalia dissent than to the majority opinion. But the frame here is that Gov. Romney has now for three weeks been forced to talk about immigration issues, and he doesn't want to talk about immigration issues.

SCHERER

10:29:21
He wants to be able to appeal to Latino voters, which remain a big problem for him on issues of jobs, on issues of presidential leadership, on the issue of the economy. And he doesn't want to, you know, whenever he is given a chance or is forced to, he does it very hesitantly to talk about where he stands on immigration because he risks alienating the conservative base, where he -- which he gave an extremely hard line on immigration during the primaries, or alienating the voters he needs to be winning over right now, Latino voters particularly in states like Colorado and Nevada.

REHM

10:29:54
And, Fawn Johnson, let's turn to the teenagers and life in prison without parole. What did the court say there?

JOHNSON

10:30:04
I think that's Jeff's specialty.

REHM

10:30:07
Oh. All right. Let's get him.

JOHNSON

10:30:09
I will pass.

REHM

10:30:10
OK.

ROSEN

10:30:10
We'll see how I do, but this was an important -- another -- this was a 5-to-4 decision, and here the question is can you have mandatory life sentences for teenagers who commit murder? And Justice Elena Kagan, writing for the four liberal justices and Justice Kennedy, said, no. You had to make an individual assessment of the particular characteristics of the offender, including the family situation, the intent with which the crime was committed.

ROSEN

10:30:38
Justice Pryor stressed that unless there was an intent and it was just -- you are -- happen to be at the scene of the crime, then that would be impermissible. But, essentially, Justice Kagan pointed to a series of decisions recently where the court has been insistent that juveniles have to be treated differently than adults. The court has struck down mandatory death sentences for juveniles for non -- in all circumstances.

ROSEN

10:31:03
It said that you have to -- you may not execute juveniles who are less than 17 years old. And it's pointed to an evolving consensus on these questions. There was a fierce dissent from Chief Justice Roberts. He strongly disputed the idea that there was a consensus on this issue 'cause he said that more than 30 states did require life in prison without parole. He said that far from moving in a more liberal direction, society in the past 10 years has become more insistent on imprisoning juveniles for their lifetime.

ROSEN

10:31:35
And he essentially accused the majority of leaping ahead and finding a consensus ahead of schedule. So this is a long-standing dispute. It's one of the issues where Justice Kennedy has consistently sided with the liberals in favor of proportionality. And Justice Kagan really took the ball and ran with it and wrote an extremely eloquent majority opinion.

REHM

10:31:52
Now what is this going to mean for teenagers who are currently in prison, sentenced to life without parole?

ROSEN

10:32:01
There are more than 2,000 such offenders who are currently in jail...

REHM

10:32:05
Whoa.

ROSEN

10:32:05
...and they will have to be resentenced.

REHM

10:32:08
Resentenced.

ROSEN

10:32:10
I think that their sentences will have to be re-examined in light of the Supreme Court decision, and the particular factors will have to be taken into account. And some will receive less than life. It's not -- some may be resentenced to life. It's not like the court is saying that that's always impermissible, but they're saying that you do have to have individual hearings.

REHM

10:32:30
All right. And let's talk quickly about the Montana case, which the court decided what?

ROSEN

10:32:38
This is remarkable. So the Montana Supreme Court, in a decision that many hoped would invite the court to reconsider the Citizens United campaign finance case, essentially refused to follow Citizens United. The Montana justices said that the history of corruption in Montana, which dates back to the Progressive Era, gives the lie to Justice Kennedy's claim that corporate contributions can never create an appearance of corruption.

ROSEN

10:33:05
And even the dissenting justice in Montana said, I have to follow Citizens United, but I hate this decision. I think it's wrong, and the court should re-examine it. It goes up to the Supreme Court. Justice Ginsburg openly calls on her colleagues to reconsider Citizens United, although she thinks the Montana court leapt ahead of schedule.

ROSEN

10:33:21
And there was fervent hope that Justice Kennedy might be persuaded to reconsider his vote and take account of all the evidence of corruption that's arisen since Citizens United and distinguish the Montana case. So it was very, very disappointing to campaign finance advocates that the court summarily reversed the Montana court.

ROSEN

10:33:39
That means that all five conservative justices held that the decision was clearly inconsistent with Citizens United. Justice Pryor, writing for the four liberals, said, we should reconsider Citizens United. There's all this new evidence. But given the fact that Justice Kennedy has not changed his vote, he said that he would have denied the petition, and that would at least allow the Montana decision to stand in Montana, a very important case.

REHM

10:34:00
And you're listening to "The Diane Rehm Show." Michael.

SCHERER

10:34:05
I think the remarkable thing about this decision is this idea that the fact pattern is changing. And the specific language that the liberals are objecting to and Montana is objecting to is a line in Justice Kennedy's decision on Citizens United that says independent -- the court concludes that independent expenditures do not give rise to corruption or the appearance of corruption. It's a factual statement that if you're spending money outside the actual campaign, you cannot be corrupting the process.

SCHERER

10:34:31
Now we're in a situation now where, I think, if you polled Americans, having just watched the way super PACs are working, the degree to which candidates can be involved in the super PAC fundraising, that messages can be coordinated legally with super PACs without actually being coordinated and the fact that, clearly, a lot of the donors to these super PACs, these outside groups are donating because they have specific policy agendas, that they want whatever politician elected, that it's inevitable that over the coming years, we establish a historical record here that will show that these sorts of independent expenditures do give rise to corruption.

SCHERER

10:35:09
I mean, this is just the way money and politics works. And it'll be interesting. Maybe this decision came too soon, but at some point the court, at a future date, will have to face the fact that they have stated, as a factual matter, this cannot give rise to corruption or the appearance of corruption even though, you know, polls will show that a large majority of the American people disagree.

REHM

10:35:28
But, of course, the court is supposed to be above what the American people think or how they operate. The question for me is why Justice Kennedy remains so firmly entrenched in this position. Surely he has seen what's happened in the last few months.

ROSEN

10:35:52
Justice Kennedy is very devoted to abstract constitutional principles. He has a very romantic...

REHM

10:35:57
Free speech.

ROSEN

10:35:59
Free speech and free speech for corporations, the same for persons. He has a romantic notion of American democracy. You know, it came out to its -- in its nice sense at the end of his Arizona decision where he called for civil discourse. He said that it was very important for America to debate constitutional principles in civil terms. But in Citizens United, he was not very interested in empirical evidence.

ROSEN

10:36:27
He was more interested in just positing that contributions could not corrupt. And for that reason, he's not especially amenable to changing his mind in light of evidence that's emerged since then.

REHM

10:36:37
Fawn.

JOHNSON

10:36:39
I was just gonna go back to the end of Kennedy's -- his majority opinion in the Arizona case because I felt like it was almost a plea to the entire country to calm down on immigration. The -- I don't know if there's the same kind of plea when it comes to things like campaign financing. But here's the quote: "With power comes responsibility, and the sound exercise of national power over immigration depends on the nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse."

JOHNSON

10:37:14
And I just read that, and I thought anybody who's been listening to -- listened just to the Republican primary in the presidential race and have been listening to the various accusations that have been coming out of Congress, this is a plea to them to please stop.

REHM

10:37:29
Fawn Johnson of National Journal magazine. Short break. When we come back, time for your calls. I look forward to hearing from you.

REHM

10:40:04
And welcome back. Let's open the phones. First to Dublin, N.H. Good morning, Russell.

RUSSELL

10:40:11
Good morning. I just like to offer the following. Justice Felix Frankfurter of the Supreme Court had as his primary dictum that the court should stay out of the political thicket, and I think we are seeing now the results of the Roberts-Rehnquist court getting into the political thicket. It's degrading to the participants. Justice Scalia is sounding like Justice Sutherland of the 1930s. Nobody is benefitting from this performance, and I'd love to hear some commentary.

REHM

10:40:48
Fawn Johnson.

JOHNSON

10:40:50
I couldn't agree with you more in that sense, other than to say that when it comes to immigration, the courts are the last word on this. There has been absolutely no discussion or any kind of progress that has been made from the administration or with negotiations with Congress on a way to fix what everyone believes is a byzantine and very difficult immigration system. It is more complex than the tax code.

JOHNSON

10:41:20
And so to the extent that, you know, you can make an argument and complain, and I think, you know, legitimately, that courts should not be involved in political issues, but in this case, this is the last chance that anyone has because it has not worked in any other place.

REHM

10:41:32
Michael Scherer.

SCHERER

10:41:33
I mean, the biggest example of this was the 2000 ruling in Bush v. Gore in which the court was asked to weigh in and did weigh in in a way that decided who the president of the United States would be. I think there are times where questions come to the court that are inherently political. I mean, the health care ruling we're gonna get on Thursday is an inherently political decision. It's dealing with the president -- the sitting president's political legacy. That doesn't mean that they shouldn't be answering those questions.

SCHERER

10:42:02
The role of the court is to answer very difficult questions of law. I think the issue, though, is a tonal one, and that's what we've been discussing here. When you deal with these political issues, do you do it in the voice of a blogger with the sort of passion of a Aaron Sorkin character? Or do you do it as -- in the voice of the law? And I think that is the real issue.

REHM

10:42:27
Jeff.

ROSEN

10:42:28
I think Felix Frankfurter is a wonderful justice to invoke. He was the great avatar of bipartisan judicial restraint. And when he referred to the political thicket, he had in mind voting rights cases where the legal standards weren't clear, where the justices were making inherently subjective decisions and where they could prevent contested social issues from being decided in the political sphere.

ROSEN

10:42:50
So he was not saying judges should never intervene, but only when they do so, they should do so on the basis of clearly established legal principles. And that's what the court did do in the immigration case, and I very much hope that the court will remember Frankfurter's tradition of bipartisan restraint when it decides health care on Thursday.

REHM

10:43:05
Tucson, Ariz. Good morning, Peggy.

PEGGY

10:43:08
Good morning, Diane. Thank you for having me on.

REHM

10:43:10
Certainly.

PEGGY

10:43:12
I am an ex-law enforcement officer in Arizona. I just want to speak a little bit about the issue of "papers please," and that is that there always has been the right to ask people that you believe may not be an American citizen for any proof of being in the country legally. That's not new. What is new is, I believe, an erosion of the civil rights of the American citizens that happened to be of Mexican descent. And as a matter of fact, some of them have even said to me, hey, we're the new black, you know, we're being stopped and harassed for our skin color.

PEGGY

10:43:52
And, you know, I'm white and no one has ever stopped me and asked me, you know, ever if I had legal right to be in this country. So it speaks to an erosion of our civil rights. And then as a statement against that -- what you just said that Kennedy had written, that we should all practice civil discourse or civil, you know, obedience, I believe that this is just another slap in the face of, hey, you know, we're going to take some more rights of yours away, and you just sit down and shut and behave.

REHM

10:44:25
Fawn.

JOHNSON

10:44:26
I think that -- I'm really glad that you called from Tucson because I was impressed with the law enforcement that I encountered down there, both the federal law enforcement who are involved at policing the border and also the local law enforcement. I think that, you know, many of these officers have the public safety in mind. In Arizona in particular, it's hard not to keep the immigration and racial element involved because so much of the drug trafficking that comes up from Mexico comes through the Tucson border, in that corridor.

JOHNSON

10:44:59
And by nature of just trying to police that, you can't help but also notice the other characteristics involved with people who are crossing the border. The one thing that I would note from what the caller said regarding the erosion of civil rights is that the Supreme Court and the federal government very carefully avoided that question in this particular case. In fact, at the oral argument, the -- I can't remember which justice it was, but I believe it was Justice Roberts said -- asked the government, you are not raising a racial profiling question. We are not talking about racial profiling in this case.

JOHNSON

10:45:34
And the government said, yes, that is our argument. Our argument -- the federal government's argument was that the -- that Arizona had overstepped its bounds in trying to regulate immigration, which is something that is only in the federal purview, and that's what the justices were deciding. But I think that the way that the -- especially the way the majority opinion was written in the sense that Justice Kennedy actually said, this is not foreclosed, are there preemption and constitutional challenges to this particular provision?

JOHNSON

10:46:05
And with the knowledge that we already know that there are lawsuits pending in all five states, raising just the questions that the caller mentioned, I think we're gonna hear a lot more about this. And I'm gonna be curious to see how the justices approach this question because this is, again, another very emotional issue, and they're trying to real about it.

REHM

10:46:23
And here's an email on exactly that. Our emailer says, "Here in Ohio, our immigrants are Russian. They look a lot like the rest of the population. How can Ohio equitably enforce a law like Arizona's, which is now actually being considered in Ohio?" Jeffrey.

ROSEN

10:46:51
It is very difficult, equitably, to enforce and also difficult to challenge as racial profiling. Arizona has already said that they'll consider things like, do you have an identifiable address as well as are you shifty and anxious-looking when you're questioned by the police? So in Ohio, if immigrants are not immediately identifiable ethnically, they might look for shiftiness, but, in fact, be profiling Russian immigrants and look for people who look like they're from Ukraine.

ROSEN

10:47:22
The difficulty -- and this is the frustration of the court's promise of future challenges -- it's hard to challenge racial profiling on constitutional grounds. The court has said repeatedly that as long as race is only one factor but not the sole factor in a search, then it's probably OK. And it's OK to use things like the shiftiness or anxiousness with which people respond to the police. So in practice, this means that racial profiling may indeed be part of the way these provisions are enforced, and that'll be very hard to challenge.

REHM

10:47:50
And a posting on Facebook, "Does anyone really believe that police will, in practice, be able to avoid racial profiling in applying the Arizona law?

SCHERER

10:48:04
I mean, one of the outcomes I think that we'll see from this ruling is that we did have, a couple of years ago, a group of states rushing forward with Arizona-type laws -- we've mentioned Utah, Alabama, South Carolina -- because they were upset. And they were almost protest laws. They were protesting the inability or lack of will of the federal government to deal with this issue. What the court has done here is say, very clearly, this is the federal governments purview. We have to leave it to the federal government.

SCHERER

10:48:35
You haven't seen, since these court challenges started, any other states follow. And I don't expect in states like Ohio and other states, in at least the short term, we're gonna have a whole new round of these laws trying to assert sort of a state role in this business. The issue of police profiling is a separate issue, right? The police, without any laws about immigration, can illegally, in most cases, go out and profile. And that's an issue of police training. And there will be -- there already are and there will be -- a continuation here.

SCHERER

10:49:08
But the -- I think the court has succeeded at least for the short term in stopping this rush by states to step into the area of immigration and try and treat it as their own business.

REHM

10:49:20
All right. To Tampa, Fla. Good morning, Francisco.

FRANCISCO

10:49:26
Good morning, Diane, and thank you for the opportunity. And I'm immigrant myself. I'm coming from the Dominican Republic. And on my time of being here, I was able to attend a school, join the United States Army for 25 years. And I did that all legally. I know about immigration. What I really -- I don't support, I don't agree with illegal immigration. I believe if president for each country is responsible to make policies and help our own community, our own people to be successful, not to the burden on the United States.

FRANCISCO

10:50:10
Also, what I note in the past demonstration, that I never seen a Russian flag, a Ukrainian flag, an Afghanistan flag. All I see is Latin American flag. I don't know why the Latin community has embraced immigration as their own problem.

JOHNSON

10:50:33
I'm interested in number of the things that the last caller just said. But the thing I liked the most about this comment from somebody who's been in the country a long time but isn't immigrant is it's the president's responsibility. The president -- this president's responsibility, the Mexican president's responsibility, the Russian president's responsibility to help our community work together and to not burden other countries with those who don't want to be in that country.

JOHNSON

10:50:58
And I couldn't agree more with that that assessment. The thing that has -- in the long term the kinds of problems that both countries -- and I'm referring specifically to United States and Mexico -- that they need to be dealing with is specifically how do you keep the relationships going with this country such that you don't have this massive influx of people coming up from the south who just can't seem to make it in Mexico. So I couldn't agree more with the caller. I hope it happens. We'll see.

REHM

10:51:27
Jeffrey.

ROSEN

10:51:28
It's interesting that the president's sole control over foreign policy was, of course, central to the Supreme Court's decision. And Justice Kennedy was very concerned that a single state, by making its immigration policy, might embarrass the president, might become a magnet for people who are fleeing other states and essentially embrace a very Hamiltonian view of the president's exclusive control over foreign policy.

ROSEN

10:51:53
Justice Scalia, by championing the states sovereignty of Arizona, was far more Jeffersonian and said that each state should be able to have its own foreign policy if the federal government was failing to enforce immigration. This is a debate that goes back to the beginning of the republic.

REHM

10:52:06
And to Dallas, Texas. Good morning, Jose.

JOSE

10:52:11
Good morning, Ms. Diane. I always listen to your show. I like it.

REHM

10:52:15
Thank you.

JOSE

10:52:15
I've been listening for years and years and years.

REHM

10:52:17
Thank you.

JOSE

10:52:18
I will even argue as far as to say I helped -- I was helped to learn English by your show. That's how much I liked it.

REHM

10:52:23
I'm glad. Thanks.

JOSE

10:52:25
Well, I've been an immigrant in this country since '97. I came up for university studies, and I've done very well for myself. I'm right in the upper, upper six digits. I live in a very wealthy community in the suburb of North Dallas area. And I will say that one thing that is really hard for me is being a nonwhite American, now that I am one, is that my hours spent to keep me in the office late because, you know, that's what, I guess, as immigrants do.

JOSE

10:52:52
We have to work, work, work. But I get racially profiled and stopped all the time. There has been times that in one month, I get stopped two or three times. And what makes me really sad is that the type of taxes that I contribute, the type of work that I do and even the jobs that I create in this particular economy, it just -- it makes me want to go home. It makes me really sad. It makes me wanna cry.

JOSE

10:53:14
And I do not wish to necessarily even say who I am for fear of reprisal because it is hard being someone that is nonwhite, living in a very affluent community of North Texas. And as you can hear, I'm choking up already because I don't want my kids growing up in this.

REHM

10:53:30
I certainly can understand and appreciate your feelings. Michael Scherer.

SCHERER

10:53:36
I think the issues that are being are being raised there are really are about the way in which this country is dramatically changing. It has been for the last 10 years. I mean, we are becoming -- and you see it in politics, in the polls, in census data -- a more mixed, less homogenous culture and country than we were before. The Hispanic population in particular is growing dramatically, and in decades, it'll be about a quarter of the population.

SCHERER

10:54:04
And what that means is that in states around the country that tend -- that historically have been mostly European immigrants, there are now Spanish-speaking people, there are stores for Spanish-speaking people. And this is, itself, creating an adjustment period that filters down in backlash among voters in police misbehavior.

SCHERER

10:54:25
And the long-term solution to this is to deal with the policy problems we have to create a legal framework to make this, you know, what is obviously a policy disaster for many perspective, more rationale and then to begin to get beyond this idea that some people are here -- are legal people and some people are not legal immigrant.

REHM

10:54:46
Michael Scherer of Time magazine, and you're listening to "The Diane Rehm Show." Well, now, the 64,000 or billion or trillion dollar question, what is all this mean in terms of what we can expect on health care? Jeffrey.

ROSEN

10:55:06
If the justices are true both to the alignments and temperamental inclinations that they showed in this case, that might be good news for health care. After all, the nationalistic vision that Justice Kennedy and Justice Roberts embraced that said that the federal government is free to regulate in areas where the states cannot adequately regulate on their own could apply just as much to upholding health care as to striking down much of the Arizona law. And, in fact, similar historical arguments were made in both cases.

ROSEN

10:55:35
On the other hand, we see from Justice Scalia's fierce states rights visions, embraced by Justice Thomas and to a lesser degree, Justice Alito, a shift from the nationalism that Scalia himself had previously embraced. Scalia used to favor broad national power, which led many people to think he did pulled health care. But here, he was sounding almost like John Calhoun during the Civil War.

ROSEN

10:55:56
And then a book that's being published just next week as The New York Times recently reported, Scalia repudiated his former nationalism and embraced a very narrow view of congressional power. So if we're reading the tea leaves just from this Arizona case, we seem to have certainly two and possibly three justices who very much favor states rights.

ROSEN

10:56:13
But the possibility of Justice Kennedy and Roberts joining the liberals in a more nationalistic direction -- and I'm not predicting anything, that would be silly at this point, but I will say that this citizens' Arizona decision is a model for how the court could act as a court on Thursday.

REHM

10:56:29
Fawn.

JOHNSON

10:56:29
I would just note that the section 3 of the Arizona law that the majority struck down has to do with alien registration. And the argument that the majority used in terms of striking that down was saying that the federal government had essentially taken the entirety of that particular area of law and owned it for itself. And that the states, because the federal government had done this through Congress, they could not intrude on it.

REHM

10:56:59
And finally, Michael Scherer.

SCHERER

10:57:01
It's very likely that Justice Roberts is the one to write this decision. It's also very likely that this is one of the most important decisions he will write in his career. It will define his legacy. I have no way of predicting, but I think through the lens of Justice Roberts in what kind of court he wants to leave, what kind of mark he wants to leave on the country, it will be really fascinating to find out what happens on Thursday.

REHM

10:57:21
Michael Scherer of Time magazine, Fawn Johnson of National Journal, Jeffrey Rosen, professor of law at George Washington University. Thanks for listening all. I'm Diane Rehm.
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