KTAR reporter Colin Smith takes you inside the Supreme Court during oral arguments on

KTAR reporter Colin Smith takes you inside the Supreme Court during oral arguments on SB 1070

by Colin Smith/KTAR (April 26th, 2012 @ 3:30pm)


If you love ideas, law and tradition, a trip to the Supreme Court in Washington D.C. is undeniably fascinating.

Being part of a precedent-setting case pitting Arizona against the United States?

It's a special privilege.

KTAR wanted to have someone in the courtroom Wednesday as the Court heard oral arguments on SB 1070, our state's controversial immigration law that has been a legal ping-pong ball since Governor Jan Brewer signed the bill two years ago.

What follows is a look back at my small part of a historic day that will frame Arizona's future.

7:30 a.m.: I arrive at the Court. Some two hours before arguments begin, some 80 people are lined up outside hoping to snag a seat.

A handful of protesters gather near the Court building's steps. Later in the day, immigration-rights advocates will swarm this spot, urging the Justices to uphold the Ninth Circuit Court of Appeals decision blocking four key parts of 1070.

8:00 a.m.: I pass through security and wind my way through the long, storied halls to the press room. Oil portraits of previous Justices hang on the wall, a pathway back in time through American legal history.

I find the press room and the wait begins. A few radio hits with Ned and Connie, but at this point, I've got about an hour and a half to dive deeper into the case.

9:00 a.m.: A few familiar faces are now in the waiting area; Kate Boldaun from CNN, Shannon Bream of FOX.

Also here is Lin Sue Cooney, the weeknight anchor for 12News in Phoenix. Brahm Resnik, 12's outstanding political reporter, is also on the story.

9:30 a.m.: Court officials break down the rules. No electronic devices (even if off), no talking, food, water, gum and no bathroom breaks.

I feel like I'm getting ready for detention.

We get our seat assignments and are led up the stairs, through security and into the courtroom. ABC News' Washington correspondent Steven Portnoy is on my left. Lincoln Caplan, who covers the Court for the New York Times Editorial Board, is on my right.

The press is seated on the far side of the courtroom.

Looking out at the crowd of some 300 people in the general seating area, I see Brewer chatting with other lawmakers and dignitaries. Former State Senator Russell Pearce and Kansas Secretary of State Kris Kobach sit next to each other, the two architects of 1070, together.

I have a great view of the large, marble pillar in front of me. I can see the counsel table, where the lawyers for both sides will stand before the Justices, but can't see the bench at all. This will be interesting.

10:00 a.m.: Everyone stands as the eight Justices (Elena Kagan recused herself as she was part of the Obama administration while it brought the case against Arizona) enter. A declaration is read, ending with "May God save the United States."

We sit. Down to business.

A little background here. The debate over 1070 has been shrouded by the misconception that the Court is considering the entire law. It's actually weighing the four provisions blocked by the Ninth Circuit:

- Require Arizona law enforcement to check the immigration status of anyone, legally stopped, no they have reasonable suspicion is in the country illegally

- Make it a state crime for an illegal immigrant to violate federal immigration laws

- Criminalize work, or any attempt to work, by an illegal alien

- Authorize officers to make a warrant-less arrest of any person they have probable cause to believe the person has committed a public offense that makes them removable from the United States

Arizona's legal counsel, Paul Clement, argues first. His central premise is that those four provisions work harmoniously with federal laws, not conflict with them.

The Justices focus primarily on the first provision regarding law enforcement. Sonia Sotomayor asks how long it might take for a police officer to discern the immigration status of someone they've stopped and suspect is in the country illegally.

Minutes later, Justice Breyer echoes that concern, asking if a significant number of people could be detained for longer amount of time than they would be in the absence of 1070.

Clement says it usually takes 10-11 minutes for a police officer to call ICE, get the immigration status, and ask the Feds how they want to proceed.

This will later be a central part of Clement's argument: that Arizona calling the federal government, and asking whether they should prosecute individuals is not a state usurping federal jurisdiction.

The three liberal justices (Breyer, Sotomayor and Ruth Bader Ginsberg) press Clement hardest.

Thirty minutes breeze by. Donald Verrilli, the U.S. Solicitor General, gets his turn.

Verrilli, much vilified during the hearings on the Administration's Affordable Care Act last month, opens with the argument that 1070 is not designed to aide federal policies, but rather to drive immigrants out of the state.

But before Verrilli dives in, Chief Justice John Roberts asks a key question:

"To be clear, no part of your argument is based on ethic profiling, is that correct?"

Verrilli agrees.

Antonin Scalia, the Court's staunch conservative, proceeds to grill Verrilli on the issue of states' independence to enforce federal immigration laws.

"What good is sovereignty if a state doesn't have the power to defend its own borders?" Scalia asked, shortly before making an interesting comparison in essentially asking why states can enforce federal law on some issues, but not others.

"There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is," Scalia said. "But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it's just an amateur bank robber, we're going to let it go. And the state's interfering with our whole scheme here because it's prosecuting all of these bank robbers."

Roberts later questioned Verrilli on how requiring a police officer to pick up the phone in cases of reasonable suspicion was an example of Arizona overstepping its authority, and is thus preempted by federal law.

"It seems the federal government doesn't want to know who's here illegally and who's not," Roberts pondered openly.

Even the more liberal justices agreed.

"You can tell (that argument) isn't selling well," Sotomayor told Verrilli.

But another major part of his argument was the idea 1070 would result in "mass incarceration" of both citizens and illegal immigrants.

That's a national foreign policy concern because Arizona's policy could sour relations with Mexico, Verrilli said.

The potential for such unlawful detainment was a concern for Justice Breyer, who asked, as a example, whether a New Mexico citizen, in Arizona without identification, might be held for an extended period of time.

Verrilli claimed that ascertaining an individuals immigration status would take more than an hour, much longer than Clement's suggestion of 10 minutes.

With the standard hour allotted for oral argument drawing to a close, Verrilli wraps up, leaving Clement with a few moments for a brief rebuttal.

"Thank you, gentlemen, well argued on both sides, the case has been submitted," Chief Justice Roberts said, banging the gavel.

11:30 a.m.: It's a mad rush for the exit, down the winding stairs and out of the building.

The previously small group of protesters has swelled in size, now 400 strong, leading chants and holding anti-1070 signs. The noise is deafening as reporters make their way down the Court building's steps.

Bream (Fox's national correspondent) says the crowd is larger than the number of protesters at the health care hearings.

I do a few more live reports for Arizona's Morning News. Dozens of cameras and microphones are set up awaiting a press conference.

Noon: That roar crescendos as Brewer and Clement approach the podium. Protesters unsuccessfully try and drown out their words.

Clement, who has argued before the Supreme Court more than 60 times, is convinced Arizona proved its case.

"All of the Justices thoroughly understood the way that these (Arizona) laws operate, Clement said outside the Court. "They understood what was at issue in this case, and what was not at issue in this case."

So what happens now?

Like the health care law, Justice Anthony Kennedy could ultimately decide this case. Considered the pivotal swing vote, Kennedy's siding with the Feds could split the Court 4-4, while siding with the state may result in a 5-3 majority decision.

Kennedy said very little during Wednesday's hearing, but did offer an interesting hypothetical question to Verrilli:

"If Arizona was facing a state of emergency, flooded with illegal aliens so much so that citizens were leaving, could the state make laws to curtail the situation?"

Verrelli was vague in his answer, but hypothetically agreed that a state would have such latitude in such a problematic scenario.

Arizona v. United States was the final case the Court will hear this spring. While the Justices will vote before the end of this week, a decision won't formally be announced until late June.

If the Court rules FOR Arizona, the legal challenges to the law would effectively be over. However, even if the Court allows specific provisions to take effect, future litigants may challenge the state on a case-by-case basis.

If the Court rules AGAINST Arizona, the case would go back to the District Court in Phoenix for a permanent injunction. BUT, it's possible the state legislature could modify 1070, in which case the District Court would have to evaluate the validity of those changes in light of the Supreme Court's decision.

Technically, if the Court rules against Arizona, Congress could still modify national immigration policy to suit 1070, but such a measure would be highly unlikely to clear the Democratically-controlled Senate.

What happens if the court DEADLOCKS 4-4?

If the Court splits, the Ninth Circuit's decision would be upheld but no opinion would be issued, meaning the case would lose it's precedent. Other states (Alabama, Georgia, Indiana, South Carolina and Utah) would be free to challenge the Feds on immigration policy and up the ladder we would go again.

In closing, there are writers, reporters, law clerks, and many others who cover and work at the Court everyday. Wednesday was just another day of arguments, cross examination and intense questioning.

But for me, this trip was my first visit to Washington since Bill Clinton lived at 1600 Pennsylvania Avenue.

I have followed various cases in the past 13 years, but never knew the ins and outs of how things work inside the Courtroom. Frankly, I never really thought about it.

When Arizona lawmakers end the legislative session in a few days, it will mark the end of four months with barely a peep on the immigration issue.

But rest assured, another fierce battle isn't far off on the horizon, and when it crops up again, everything will be viewed in the light of one hour of hearings, inside that mysterious building across from the Capitol that houses the third branch of government.

KTAR reporter Colin Smith takes you inside the Supreme Court during oral arguments on SB 1070 - KTAR.com