Counting to Five for S.B. 1070

It will take five votes on the Supreme Court for Arizona to get permission to start enforcing key parts of its tough new immigration control law -- S.B. 1070 -- and those votes appeared to be within reach on Wednesday. In an 80-minute hearing, the Court got strong assurances from Arizona's lawyer that the law would not be enforced in an abusive way, and the Justices could not find fault with that promise.

The judicial arithmetic is important in this case, because only eight Justices will be taking part in deciding it, and that always raises the prospect of a 4-4 split. But if the Court does divide that way in the case of Arizona v. U.S., Arizona loses. That's because an even split will uphold a federal appeals court ruling forbidding Arizona to enforce the most controversial parts of S.B. 1070. (Justice Elena Kagan is not taking part, probably because of her former role in the Obama Administration Justice Department.)

Sometimes in hearings before the Supreme Court, atmospherics can tell a lot about how the two competing sides are faring. On Wednesday, it was apparent that Arizona had found some sympathy for its claim that it had to protect itself from illegal immigrants, and that the federal government had overstated its protest that Arizona would disrupt government immigration policy.

Perhaps much could change as the Justices, over perhaps the next eight weeks, ponder just how to rule on S.B. 1070, and appearances from Wednesday might prove to have been misleading. In the meantime, though, as the nation awaits the actual outcome, the narrative will spread that states are likely to gain significant new authority to deal with a problem that has escaped the federal government's management for generations.

Justice Anthony M. Kennedy, so often the holder of the decisive vote when the Court is divided, seemed to give impetus to that narrative in the hearing on the case.

He suggested to the government's attorney, Solicitor General Donald B. Verrilli Jr., to proceed on two assumptions. First, that the federal government did not have the resources to fully enforce immigration restrictions, and, second, that Arizona was experiencing "social disruption" and "economic disruption" from illegal immigration. Given that, Kennedy asked, why would the state not be entitled to ask its legislature to take some action?

Verrilli responded that, in doing so, a state had to confine its response to cooperating with the federal government in the way that federal officials, who have primary authority, wanted. What Arizona had done, instead, Verrilli argued, was to opt for a program of "mass incarceration," putting many illegal immigrants in jail or prison instead of following the more balanced approach the federal government preferred.

But that argument about a supposed refusal of Arizona to cooperate properly was dismissed by Justice Sonia Sotomayor, whose vote the federal government surely would need to prevail. She told the Solicitor General that his line of argument was "not selling very well; why don't you try to come up with something else?"

Chief Justice John G. Roberts Jr., and Justice Antonin Scalia took turns trying to dismantle the federal government challenge, provision by provision. And Scalia went so far -- in a comment that no other Justice openly supported -- as to argue that a state like Arizona could simply shut its own borders so that no illegal immigrant ever entered.

If the Chief Justice, Scalia, and Kennedy were on Arizona's side, as seemed evident, then the state would need only two more. Justice Clarence Thomas' vote for Arizona is almost assured, because he is hostile to the kind of technical legal argument that Verrilli made about federal vs. state power.

That would leave Arizona needing one vote from one of the other four -- Justice Sotomayor, and Justices Samuel A. Alito Jr., Stephen G. Breyer, and Ruth Bader Ginsburg. If Wednesday's hearing could be trusted as a sign of the Court's leanings, that fifth vote, and perhaps more, might well be forthcoming when the decision finally emerges.

Under the Court's normal operations, there is no specific timetable for the ruling. When the Justices assemble in private on Friday morning, they will cast a preliminary vote on the case, and that will be the basis for an assignment of a Justice to begin drafting an opinion. It seems likely that the final ruling will not emerge until late June -- no doubt, placing it in the midst of the federal election campaign already in progress.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.