WASHINGTON, June 25 (Reuters) - The U.S. Supreme Court's
decision in the Arizona immigration case on Monday showed a
conciliatory streak within a divided court that could emerge
again when the justices issue their climactic healthcare
decision on Thursday.
What the Arizona compromise will augur for the most closely
watched case of the term is anyone's guess. Yet the justices'
evident search for common ground in the immigration ruling and a
few other cases this term could portend a healthcare decision
that does not predictably cleave along political lines.
Monday's decision, written by conservative Justice Anthony
Kennedy and joined in full by fellow conservative Chief Justice
John Roberts and -- notably -- three liberals, struck down most
of the Arizona measure intended to drive out illegal immigrants.
The court also, as it upheld a controversial requirement for
police stops of people suspected of being in the United States
illegally, suggested limits on how long people may be detained.
Overall, the judgment was modest, the tone cautious. It
underscored the federal role in regulating immigration and
largely rejected the effort by Arizona -- and, by extension,
several other states -- to institute sweeping measures to stop
people from illegally crossing the border.
The justices' regard for national authority on dilemmas that
cut across state boundaries could end up echoing in the
healthcare ruling.
"Both problems transcend states' borders and are too big for
the states to solve on their own," Duke University law professor
Neil Siegel said, stressing that he did not want to predict how
the court would rule on Thursday.
Even before the Arizona case, Roberts and some of his
colleagues had taken steps to minimize differences based on
politics and ideology. Earlier this term the justices issued
unanimous, incremental decisions in disputes over Texas voting
districts that civil rights advocates said would dilute Latino
voting power; over when employees of churches and other
religious organizations may sue for bias; and over
constitutional safeguards for police use of GPS tracking
devices.
While the court did not fully side with President Barack
Obama's administration in the Arizona immigration battle, it
gave the Democratic president more than might have been
expected. "The case reaffirms the primacy of the federal
government over immigration in broad strokes," said Temple
University law professor Peter Spiro.
AN OLIVE BRANCH
In narrowly construing the provision requiring police to ask
people they stop to verify their immigration status, Kennedy
offered an olive branch to the administration and civil rights
groups. He warned state authorities not to use the law to delay
the release of people or to target minor offenders -- for
example, jaywalkers who cannot produce identification.
"It would disrupt the federal framework to put state
officers in the position of holding aliens in custody for
possible unlawful presence, without federal direction and
supervision," Kennedy wrote.
Kennedy also emphasized that the law could be challenged in
a future case on other constitutional grounds, such as whether
it violates equal protection or due process guarantees. The
decision in Ari zona v. United States tu rned on the question of
state versus federal power.
The limits Kennedy imposed on police actions likely helped
draw the three liberal justices -- Ruth Bader Ginsburg, Stephen
Breyer and Sonia Sotomayor -- to sign on. During April oral
arguments they had voiced fears about whether people would be
jailed for lengthy periods while police checked with federal
authorities on whether a person was in the United States
lawfully. (The court's fourth liberal, Elena Kagan, who
previously had been U.S. solicitor general, did not participate
in the case.)
The nine justices are split not just ideologically but
politically. The five conservatives, who often vote as a
prevailing bloc, were appointed by Republican presidents. The
four liberals, who often find themselves in dissent, were
appointed by Democratic presidents.
MORE HEATED RHETORIC?
The immigration and healthcare disputes arose from battles
between the Democratic Obama administration and Republican
states. Both tested sections of the Constitution dealing with
the respective powers of the federal government and states.
There are significant differences between the cases,
however. The pending healthcare dispute hinges on congressional
authority to regulate interstate commerce. During the arguments
over healthcare in March, Kennedy suggested by his questions
that the law passed by Congress might go too far.
In addition, the healthcare dispute is far more complicated
than the Arizona dispute and less likely to offer an easy route
to compromise.
It may also inspire more of the heated rhetoric heard on
Monday from one of the three justices who did not sign the
compromise opinion.
In an angry dissent from the bench, Justice Antonin Scalia
went beyond the case to take a swipe at Obama's recent order to
stop deportations of certain young people.
Based on his past decisions and withering remarks from the
bench during oral arguments, it's almost a foregone conclusion
that Scalia would vote to strike down at least the core
provision of the healthcare law that requires most Americans
purchase health insurance. Justices Samuel Alito and Clarence
Thomas, who wrote separate dissents in the Arizona immigration
dispute Monday, are likely to be in that camp as well.
Roberts wrote no separate statement on Monday, a move that
showed solidarity with the Kennedy majority. In addition, he
likely is focusing on the healthcare dispute to be unveiled
Thursday.
While Roberts expressed strong skepticism for the Obama
administration's defense of the healthcare law during the
court's historic three days of oral arguments in March, the
chief justice's remarks taken as a whole, as well as his record
on congressional power, defy easy prediction.
One thing is known: Roberts is concerned about the Supreme
Court's place in history. He has spoken about the need to
preserve the integrity of the bench in deeply polarized
Washington and has touted the value of unanimous or near
unanimous opinions.
In a June 2006 commencement address at Georgetown University
law school, less than a year after he had taken the center
chair, Roberts said: "If it is not necessary to decide more to
dispose of a case, in my view it is necessary not to decide
more."
(Reporting by Joan Biskupic)
Follow us on Twitter @ReutersLegal | Like us on Facebook