Arizona immigrant bail case at the Supreme Court: Proposition 100 is unconstitutional, Clarence Thomas is mad.

The Supreme Court Killed a Vicious Law, and Conservative Justices Are Furious

The Supreme Court Killed a Vicious Law, and Conservative Justices Are Furious

The law, lawyers, and the court.
June 4 2015 11:52 AM

Guilty Until Proven Innocent

The Supreme Court let a vicious Arizona law die, and conservative justices are furious.

Supreme Court Justice Clarence Thomas Antonin Scalia Samuel Alit,Supreme Court Justice Clarence Thomas Antonin Scalia Samuel Alito.
Supreme Court Justices Clarence Thomas, Antonin Scalia, and Samuel Alito.

Photo illustration by Slate. Photos by Chip Somodevilla/Getty Images,and Saul Loeb/AFP/Getty Images

When the Supreme Court kills terrible laws, it usually does so with a bang heard around the country, handing down a bold opinion that kicks open the gates to justice. But every once in a while, the justices let awful laws suffocate with a whimper. That’s what happened on Monday, when the court refused to hear County of Maricopa v. Angel Lopez-Valenzuela. The case could have been a nightmare for human rights, creating a serious setback for constitutional protections for undocumented immigrants. Instead, it ended in an anticlimax. The only howl, predictably, came from the court’s most conservative justices, who said the court is spurning the Arizona voters who want to strip immigrants of their most fundamental rights.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Lopez-Valenzuela sprung out of an Arizona state constitutional amendment called Proposition 100. Passed by nearly 80 percent of voters in 2006, Proposition 100 barred Arizona state courts from setting bail for undocumented immigrants accused of a broad array of crimes—not just serious offenses, but also lesser ones such as illegally copying a sound recording. The amendment was engineered by then-Rep. Russell Pearce—the mastermind of the notorious anti-immigrant law the Supreme Court later gutted—and Maricopa County Attorney Andrew Thomas, who claimed violent undocumented immigrants were fleeing the country on bail.

Under the law, a legal resident and an undocumented immigrant charged with the same crime would be treated differently in court. After arrest, the legal resident would retain the presumption of innocence and have an opportunity to make bail and await trial away from jail. The undocumented immigrant, on the other hand, would be automatically denied bail and kept locked up until trial, regardless of the charge. She would, in effect, be guilty until proven innocent.

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The law was in effect for about eight years. During that times, hundreds of immigrants were held in jail for minor crimes. One undocumented immigrant was trapped in custody for forging a Social Security card so he could get a job and buy food.*

In October 2014, the 9th Circuit Court of Appeals struck down Proposition 100 as a violation of the 14th Amendment’s due process clause. That clause declares that no state shall “deprive any person of life, liberty, or property, without due process of law.” An undocumented immigrant is undoubtedly a “person,” the court noted, and thus she must receive the full measure of due process protections. Moreover, a law that forced an immigrant to remain in prison is certainly a deprivation of “liberty.”

The court concluded that by depriving immigrants of their constitutional right to liberty—based on nothing more than their immigration status—Proposition 100 violated the due process clause in two specific ways. First, the amendment restricted immigrants’ fundamental right of liberty with no compelling justification. Second, the amendment imposed a punishment on immigrants before trial—that is, when they are still legally innocent.

In court, defenders of Proposition 100 acknowledged that the amendment might hamper immigrants’ liberty. But, they argued, the infringement was justified by the huge number of violent immigrants who slip across the border while on bail to escape the U.S. criminal justice system. A belief that this practice was dangerously rampant drove many of Proposition 100’s voters to the polls.

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But it turns out these voters were duped—largely by one man, Maricopa County Attorney Andrew Thomas, who made up the alleged crisis. During the campaign for Proposition 100, Thomas embarked on a media blitz, telling Lou Dobbs that “illegal immigrants” were coming into Arizona, committing crimes, then escaping back to Mexico. When pressed, however, Thomas was unable to cite any evidence for his claims. In fact, the county attorney could point to only one instance in which an undocumented immigrant left Arizona while on bail—which occurred when the federal government deported him. Thomas was, it appears, spewing fabricated calumny in order to stir up anti-immigrant animus.

And that turned out to be the high point of his career: In 2012, Thomas was disbarred for using his office to attack political enemies and file unfounded criminal charges. In the words of the state bar committee, Thomas “outrageously exploited power,” “flagrantly fostered fear,” “disgracefully misused the law,” and “dishonored, desecrated, and defiled” the public trust.

The case for Proposition 100, then, largely rested upon groundless, probably prejudiced assertions made by a man who “outrageously exploited power.” Yet Justices Clarence Thomas, Antonin Scalia, and Samuel Alito thought that the Supreme Court should consider ruling in favor of Arizona. On Monday, the Supreme Court declined to review Lopez-Valenzuela, allowing the 9th Circuit’s ruling to stand and effectively killing Proposition 100. The court doesn’t release a vote count when it turns down cases, but Scalia, Thomas, and Alito all went out of their way to announce that they voted to hear the case. (This trio has been on bad behavior lately.) Only four justices’ votes are necessary to take up a case, so it’s a safe bet that the other six justices all voted to let Lopez-Valenzuela die of natural causes.

Thomas, joined by Scalia, wrote an opinion castigating his colleagues for letting the 9th Circuit’s ruling stand. Thomas decided to seize the opportunity to explain why Proposition 100 is definitely constitutional. Criticizing the lower court’s ruling as “dubious constitutional analysis,” Thomas implied that the 9th Circuit’s ruling was based not on law but on “public policy.” He then implied that the decision was akin to courts using the due process clause to strike down minimum wage laws and price regulation, since both of those violate “liberty” as well.

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At this point, it’s difficult to tell whether Thomas believes his own arguments or whether he’s just trolling. The tenuous theory that once led the court to strike down economic regulations such as minimum wage rested on the belief that the right to contract—even for pathetically low wages—was a “liberty” protected by the due process clause. The theory behind the invalidation of Proposition 100 is on vastly firmer constitutional footing. Arizona isn’t just restricting an individual’s vague right to economic freedom; the state is restricting every undocumented immigrant’s most fundamental right—the freedom from bodily restraint. And rather than restricting this right through due process—a judicial assessment of the law and the charges—Proposition 100 simply mandated that the immigrant stay behind bars. The amendment replaced the individualized judgment of courts with the collective judgment of Arizona voters. That is not how we protect liberty in America.

Luckily, the decision by the court’s more moderate justices will keep Lopez-Valenzuela far from Thomas’ reach. By swatting the case away, the court ensured that immigrants accused of a crime in Arizona won’t face unjust punishment merely because they’re undocumented. The 9th Circuit didn’t inflict its policy preferences on Arizona when it struck down Proposition 100, as Thomas claimed. It preserved fundamental constitutional rights for one of the most despised and marginalized groups in America, safeguarding their liberty against popular prejudice. That’s not an exercise in raw judicial overreach. It’s just a court doing its job.

Correction, June 4, 2015: This article originally misstated that Arizona’s Proposition 100 was in effect briefly. It was in effect for eight years. (Return.)