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An Historic Composition

Posted on 10/12/2010 @ 04:00 PM

Last week, the Supreme Court’s term began with an historic composition consisting of three female justices for the first time in its history. However, due to her previous role as Solicitor General, the history-making third female justice, Elena Kagan, has had to recuse herself from participating in what will probably be the highest-profile immigration case to be heard by the Supreme Court during this term. No, this won’t be the case of Arizona’s infamous racial-profiling law, known as SB 1070. That case still has to make its way through the appeals process and won’t land in the Supreme Court for at least another year.

The immigration case to be heard this year will be Chamber of Commerce v. Whiting, in which another Arizona law is in dispute. The law in question makes it mandatory for employers in the state to use the federal e-Verify database to check whether a potential employee is authorized to work. The law is being challenged by a broad coalition of business, civil rights and immigrant rights groups, with the support of the federal government, on the grounds that the federal law that created e-Verify makes its use voluntary. Similar to the grounds the federal government used against SB 1070 in district court, the reason for rejecting Arizona’s law is, in very simple terms, that it pre-empts federal law.

Since Justice Kagan has recused herself from this case, it will be decided by the remaining eight justices, setting up the possibility of a 4-to-4 tie, in which case the previous appeals court ruling in favor of the State of Arizona would stand. Regardless of which way the court decides this case, some may rush to draw parallels and make predictions about how the court will rule on SB 1070. However, it will be important to remember that each case is different, with different circumstances and arguments.

For more information on this and upcoming cases to be heard by the U.S. Supreme Court go straight to their main page — supremecourt.gov. We’ll keep you posted on our end as well.

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