• SB 1070: High court has already decided, but process maintains suspense

    SB 1070: High court has already decided, but process maintains suspense

    The U.S. Supreme Court might issue its opinion on Arizona's controversial immigration law, Senate Bill 1070, as early as Monday. Or next Thursday. Or, heck, maybe sometime in July.

    Despite what you may have heard, nobody knows for sure.

    So, as they have for weeks, folks with a stake or keen interest in the ruling -- politicians, immigration advocates and, yes, journalists -- will fire up their computers at exactly 7 a.m. Arizona time to see if today's the day.

    But here's the thing: The Supreme Court already has decided the case, and they likely did so two months ago.

    So what's the holdup?

    There's plenty of politics involved in writing, negotiating and tweaking that opinion. And while nobody -- or at least nobody willing to talk openly -- knows what's happening with the SB 1070 case behind the Supreme Court's closed doors, we do have a general understanding of the justices' process.

    On April 25, the SB 1070 case became the last one argued this session. Two days later, the nine justices gathered behind closed doors, without clerks or staff, to discuss the four cases they had heard that week.

    "They go around the room and state which way they're leaning and why," said Andy Hessick, associate dean at Arizona State University's Sandra Day O'Connor College of Law and who teaches courses on the Supreme Court.

    With the SB 1070 case, there was a lot to discuss. Four parts of the law face scrutiny: requiring an officer to check immigration status in certain situations, making the failure to carry "alien-registration documents" a crime, forbidding illegal immigrants from working and allowing some warrantless arrests.

    Once they declare how they stand, the most senior justice on the majority side assigns one of the justices on the prevailing side to write the opinion. The senior justice could assign the task to him- or herself or choose someone else.

    "So far as is publicly known, there are no constraints on who the senior assigns," Hessick said, adding that they seem to spread the work around.

    The chosen justice then writes a draft. "In some chambers, the justices write the opinion," Hessick said. "In other chambers, the clerks write the first draft, and the justice will take it and rewrite it."

    Staff members then circulate the draft to the other justices, who respond by memo suggesting changes and indicating whether they still will join the opinion.

    by Alia Beard Rau - Jun. 20, 2012 11:29 PM
    The Republic | azcentral.com

    "Sometimes they'll say, 'I'm not prepared to join this opinion as it is, but would be amenable to join it if the following changes were made,' " Hessick said. "Or they might provide a new draft or a new section. Or they might say, 'I'm not joining anymore, I'm writing a completely different opinion.' "

    During this time, Hessick said, justices may switch sides, which, on issues that divide the court, can change what began as a majority opinion into the minority opinion.

    "People like to play a game of trying to guess when this happens by reading a dissent," which tend to be short and to the point, he said. "But sometimes you'll see a dissent that looks very much like a majority opinion with lots of facts and procedural opinions."

    Once they're satisfied with the majority opinion, justices on the dissenting side can write their opinion. (The prevailing side can tweak its opinion in response to arguments made in the dissenting opinion. And then the dissenting side can revise its opinion and on and on until the justices are satisfied.)

    The high court then releases its opinions on scheduled days but gives no hints as to which opinions will come on which days, not even to the parties involved in the lawsuits.

    "At the Supreme Court, those who know don't talk and those who talk don't know," Justice Ruth Bader Ginsburg said last week in a speech to the American Constitution Society.

    That hasn't stopped political insiders -- and the media -- from offering every fifth-hand rumor from "inside sources" as to when the justices will rule on SB 1070.

    Many insiders (and outsiders) had predicted the court would rule this past Monday, based on the theory that the court likes to issue rulings in the biggest cases last. Because SB 1070 is the second-biggest case this session, the court likely would release it on the second-to-last opinion day. (The Affordable Care Act ruling will be the biggest.)

    But while the court generally releases its opinions on one scheduled day a week, it likes to add additional days during the last weeks of the session -- usually with only a few days' notice. This week, the court added today as an opinion day. Next week, it's supposed to add at least one day in addition to Monday.

    So, based on the additional days and the same theory, "insiders" adopted a new favorite prediction: Monday.

    Ginsburg, in her speech last week, predicted some divisive rulings to come, but she gave no hints on specific cases.

    "As one may expect, many of the most controversial cases remain pending," Ginsburg said.

    With the SB 1070 case, Hessick said there could be multiple majority and minority opinions. Each of the four parts of the law under scrutiny could get a different answer.

    "It could totally be a mess," Hessick said.

    And that also could be why the Arizona case will be one of the last opinions issued.

    "The really big-ticket items come out later because there's more back and forth," he said.

    And so Arizona waits.
    This article was originally published in forum thread: SB 1070: High court has already decided, but process maintains suspense started by JohnDoe2 View original post