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The Supreme Court Gets Political in Arizona v. United States

When the Supreme Court heard oral argument in the healthcare cases last month, the overtly political tone of several justices’ questioning caused widespread consternation about whether the Court would be deciding the case based on the law or based on their own ideological preferences and policy judgments.

This week, the Supreme Court heard oral argument in the federal government’s challenge to Arizona’s draconian immigration law. Court observers were surprised by certain justices’ willingness once again to lay bare their partisan beliefs, which, of course, should be quite irrelevant to the outcome of the case.

In the Washington Post, Dana Milbank described Justice Scalia’s questioning as “verg[ing] on outright heckling,” noting that “[w]hile other justices at least attempted a veneer of fair and impartial questioning in the highly charged case, Scalia left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise.”

Other commentators thought Scalia was not the only justice guilty of puncturing the veneer of impartiality. Michael McGough commented in the L.A. Times that Chief Justice Roberts provided a useful sound bite to immigration opponents when he pointedly remarked, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.” It is startling that Chief Justice Roberts would engage in this sort of baseless speculation, which has nothing to do with the legal question of whether or not the four challenged provisions of the Arizona law are preempted by federal immigration law.

Writing in The Atlantic, Andrew Cohen noted, “Indeed, reading through the transcript of Wednesday’s oral argument is like sifting through the debris of an ambush. The Court’s majority clearly isn’t feeling deferential toward the federal government's immigration policies. Some of the justices’ disdain for executive branch priorities practically dripped from their words.”

When justices seem to treat Supreme Court proceedings as nothing more than an extension of a political battle, it is no wonder that half of Americans think the justices will make their decisions in the healthcare case based on partisan politics rather than the Constitution or the text of the law.