Why does the Supreme Court bother to hear cases at all anymore? Is it a parlor game, a form of rhetorical kabuki or do the justices still believe that they make up their minds after hearing the evidence, based on unwavering legal principles?
The days are long past when a major decision would astonish, even while appalling. The surprise would come in the form of the legal principle said to underlie it and what the Court had chosen it to mean at that time. Now the Court has agreed to hear the State of Arizona vs. the United States of America, determining the constitutionality of a 2010 law empowering local police to check the papers of people suspected of being brown. As Governor Jan Brewer declared on Monday, “It’s about the fundamental principle of federalism.”
Federalism, as you may have heard, is the inalienable right of states to do whatever they please. Conservatives embrace aggressive federalism because it will leave someone in charge after they burn down Washington. In fact the only deviation from their steadfast support of states’ rights is when the state is doing something they don’t like, such as allowing people in matching outfits to marry. (In fairness, liberals do much the same with the First Amendment; freedom of speech is absolute unless your opinions are rude.)
The thing about federalism, though, is that it assumes the federal government has some authority, otherwise we would be a confederacy, like in one of Newt Gingrich’s wishful history novels. Traditionally, federal powers have included providing for the common defense, which may even be written down somewhere. It will be interesting to see if the justices will be able to find that citation, or if they will come down on the side of states’ rights, which they do whenever it suits them (excepting Bush v. Gore, natch, as states can’t be trusted to determine their own election results.) Or perhaps there is some more fun and exotic precedent they could cite, such as Dred Scott v. Sandford. In either case, justification will be done.