While Justice Antonin Scalia played his traditional outsized role as the blustery lightning rod, ridiculing the government’s case at almost every turn, it was Roberts who, with precision, seemed intent at undermining it at every opportunity. Before Verrilli began his presentation, Roberts noted that the government had failed to assert that Arizona’s immigration law should be overturned because it invites racial and ethnic profiling. (This was true: The U.S. made the decision to argue that the law should be struck down because it interferes with the enforcement of immigration laws, a traditional federal function, not because it could lead to race-based targeting.)
That would be instrumental later, as Verrilli attempted to find traction with the justices by contending that the Arizona law could indeed lead to harassment of individuals suspected of being in the country illegally. “What does this have to do with federal immigration law?” said Scalia, pouncing. “I mean, it may have to do with racial harassment, but I thought you weren’t relying on that.”
(RELATED: Scenes From Outside the Court)
Verrilli wasn’t trying to make a straight-up harassment argument, but instead was making a case for why federal law should supersede Arizona’s law. But Roberts—perhaps knowing Verrilli was going to go there—had already induced him to concede part of that case at the outset.
The chief justice also attacked the government’s main justification for overturning Arizona’s law—that mandatory checks by Arizona law enforcement officers would interfere with the federal government’s prosecutorial discretion in immigration cases. He also found fault with Verrilli’s argument that it might be acceptable for individual Arizona officers to conduct background checks in certain cases, but a law mandating such checks is unconstitutional. Roberts noted that the law provides for an immigration status check only if the suspect is stopped for reasons relating to another possible crime.