There's No Ethnic Profiling in Arizona S.B. 1070?

In A League of Their Own, Coach Jimmy Dugan, (played by Tom Hanks), chastises one of the Rockford Peaches after a botched play, saying, "Are you crying? There's no crying. There's no crying in baseball."

As Solicitor General Donald Verrilli, Jr. stepped up to the plate in Wednesday's oral arguments about Arizona S.B. 1070, Coach Chief Justice John Roberts offered a similar warning from the bench.

Their exchange, (from the Supreme Court transcript):

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.

GENERAL VERRILLI: That's correct.

CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.

GENERAL VERRILLI: We're not making any allegation about racial or ethnic profiling in the case.

So why the awkward exchange about subjects not covered in this case? SCOTUSblog suggests that Chief Justice Roberts may have been covering his bases and "head off criticism that, if the Court did allow Arizona to enforce S.B. 1070, the Court was not endorsing racial or ethnic profiling."

The question remains: How can law enforcement officials carry out Arizona S.B. 1070 without engaging in racial or ethnic profiling?

The Arizona immigration law requires the police to question people about their immigration status if they have reasonable suspicion that the person is an illegal immigrant. The bill provides that officers must determine a person's immigration status during a stop, penalizes undocumented aliens for seeking work, and permits cops to make warrantless arrests if a person commits an offense that makes him removable from the U.S.

(Can we call foul? What, other than some form of ethnic profiling, would prompt an encounter to ask about immigration status?)

Paul Clement, who argued Arizona's case before the Court today, told The New York Times that the case is really about preemption, not profiling, "The state law does not really authorize the officers to do something they can't do otherwise ... It simply makes it systematic."

The Court will need a five-judge majority to either affirm or reverse the Ninth Circuit's earlier ruling in the case. Since Justice Elena Kagan recused herself from the matter, an evenly-split court would uphold the Ninth Circuit decision without a written opinion.

During arguments, the justices seemed to favor blocking the bill's criminal sanctions while allowing the proof of lawful status and warrantless arrest provisions to go into effect, provided detainees are not held longer than they would be in the absence of S.B. 1070, reports the Huffington Post.

Related Resources:

• Paul Clement, Donald Verrilli: Rematch This Week with S.B. 1070 (FindLaw's Supreme Court Blog)
• AZ Recalls Russell Pearce, SB 1070 Sponsor (FindLaw's Law & Daily Life)
• Arizona Immigration Law SB 1070 Takes Another Hit via 9th Circuit (FindLaw's Decided)