THE BLOG

The Supreme Court Among Us

07/10/2012 06:04 pm ET | Updated Sep 09, 2012

Last week's rulings on immigration reform and health care by the United States Supreme Court are a compelling reminder of what's at stake in November: "It's the Court, stupid!" This should be the rallying cry for anyone who thinks that this November's election does not matter.

In both rulings, a narrow majority authored opinions that will influence the contour and direction of American society for a generation or two. How Arizona v. United States came before the Supreme Court and the ultimate decision are useful and instructive when considering the upcoming election.

It is clear that millions of people in America are frustrated with the economic stagnation that has gripped the nation since the great recession of 2007-08, and have been searching for someone to blame. Xenophobes and nationalists among us seized the opportunity and declared war on immigrants. Arizona led the way with a draconian anti-immigration law that permitted states to demand "papers" if they suspected an individual was undocumented; imposed a state criminal penalty on individuals who could not produce papers; allowed states to arrest individuals without a warrant if they believed they were deportable; and created a criminal penalty for anyone who sought or accepted work without authorization.

These provisions and the Arizona law served as a model for a number of other states, including Alabama, Georgia and South Carolina.

Given the fear inspired by the Arizona law and its proliferation in other states, President Obama and Attorney General Eric Holder filed suit to enjoin Arizona's implementation of the law. The Department of Justice objected to the law on fundamental principles of fairness and constitutionality, and with a clear understanding that "common sense" should be applied when drafting and implementing laws. This lawsuit started the case on the path to the Supreme Court and the Obama White House challenge the State of Arizona in defense of the rights of human beings -- citizens and undocumented immigrants alike.

A Romney White House, we know from Governor Romney's own words, would never have engaged this case, allowing a clear attack on immigrant communities to stand.

After argument at the Court, a 5-3 majority -- Justice Kagan recused herself from consideration -- held that three of the four provisions in question were unconstitutional as they were pre-empted by federal law. The only provision that survived was the so-called "show me your papers provision," but the elimination of any state criminal penalty for failing to produce such papers and Justice Kennedy's open invitation for future challenges to its constitutionality suggest that this provision will have little practical or lasting effect.

Given that the U.S. Supreme Court currently has four members who are septuagenarians, the next president will likely have the opportunity to nominate at least two new Supreme Court justices. Since the early 19th century Marbury v. Madison case, the Court has served as guarantor of the fundamental rights and liberties enshrined in the Constitution. The Court's role as protector of the minority from the whims of the majority is even more critical in these economically challenging and politically divisive times.

Although the Arizona law was popular there and has been imitated in states already listed, a majority of the Court ensured that our fundamental rights were not overrun by the mob. Interpreting, upholding and defending the fundamental principles of our founding documents is the work of the Court, but their work is not always clearly defined and rights that are "granted" can be taken away. As Justice Scalia's acerbic dissenting statement made clear, partisan politics are indeed a factor in the judicial process and weigh heavily on those nine who currently occupy the bench.

Thus, with last week's opinions, the Court presented the nation with two major rulings and in the Arizona case, the Court pulled the nation back from its own partisan excesses, prevailed against the legal thinking of the dissenters, and forced us all to refocus on our better angels. The Supreme Court matters, and since we cannot vote for our justices, only for the president who nominates them, so does this election.


Bryce Ashby is a Memphis-based attorney and board member at Latino Memphis, Inc. Michael J. LaRosa is professor of history at Rhodes College in Memphis.