When Arizona decided to put an end to people who spoke with accents sullying the manicured lawns of their fine retirement communities, there was an uproar.  After all, a law predicated on imposing a mandatory police duty of ascertaining citizenship status from people who police “reasonably suspect” are illegals is, well, pretty darned outrageous.

Enter the Supreme Court to save us.  Oral argument in Arizona v. United States (and case names are rarely this clear) was held, and we can all breath easier, even Justice Sonia Sotomayor who was reportedly required to show proof and answer a few easy American history questions before being allowed into One First Street.

According to Adam Liptak at the New York Times, things didn’t go well.

“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument against the measure.

Mr. Verrilli, representing the federal government, had urged the court to strike down a provision requiring state law enforcement officials to determine the immigration status of people they stop and suspect are not in the United States legally.

It’s not that the questions from judges suggested that blond hair and the first name of Sven was cause to hold a guy for a check.  Rather, the case before the Court was about the Supremacy Clause and federal pre-emption.

The Arizona law advances what it calls a policy of “attrition through enforcement.” The Obama administration sued to block the law, saying it could not be reconciled with federal laws and policies. In legal terms, the case is about whether federal law “pre-empts,” or displaces, the challenged state law.

As a general matter, federal laws trump conflicting state laws under the Constitution’s supremacy clause. But no federal law bars the challenged provisions of the Arizona in so many words, and the question for the justices is whether federal and state laws are in such conflict that the state law must yield.

While the federal government owns immigration policy, Arizona’s point is that it’s law is consistent with federal law and policy, and just helps it along by making reporting of illegal aliens mandatory rather than haphazard.  The 9th Circuit held the law pre-empted, and Arizona (along with 25 other states) disagreed.

While federal pre-emption is one way to kick the crap out of state immigration law that will cause misery on the streets of Phoenix, assuming the Supremes go along with their dear brethren in Frisco, the absence of another monumentally significant issue from the case is astounding.  The Supreme Court is considering the propriety of a law that is hugely controversial and will, by definition, cause huge misery to a great many people whose names end in vowels, and yet isn’t considering this aspect at all.

It’s not that the Court doesn’t see the issue.  It’s not that the Court lacks empathy (though whether it has empathy remains a question).  It’s that procedurally, the only issue before it at the moment is federal pre-emption.

Indeed, Chief Justice John G. Roberts Jr. signaled that the court was not closing the door on such a challenge, making clear that the case…was about the allocation of state and federal power. “No part of your argument has to do with racial or ethnic profiling, does it?” he asked Mr. Verrilli, who agreed.

As lawyers, the procedural limitations imposed by the issues for which certiorari was granted makes perfect sense. We’re schooled in the ability to distinguish issues, to wear blinders that allow us to focus on a specific aspect and not notice the 800 pound gorilla sitting next to us.  But cases like this suggest that our facility in ignoring gorillas is pretty ridiculous.

Assuming, as Liptak suggested based on oral argument, that this didn’t go well for the United States and the justices aren’t likely to affirm the 9th Circuit’s pre-emption ruling, the Arizona law will go into effect.  No one has yet to suggest what aspect of rounding up folks who cops “suspect” to be illegal aliens is going to fly, whether because they speak with an accent (or no English at all), have dark colored skin, slanted eyes or black (or blond, for that matter) skin. 

Does that make them aliens? Does that make them illegal? As a nation of immigrants, we’re all at risk, but you can bet they won’t be narrowing in on guys named “John Smith” who speak the King’s English for proof of citizenship.  As for the rest of you, well, suck it up in the name of immigration purity.

But it will be years before the case gets back before the Supremes to determine whether the law is so ridiculously unenforceable without engaging in rampant and rank racial and ethnic profiling.  And during those years, human beings will suffer. That it’s going to happen is obvious, even to Justice John Roberts, who was allowed into the courthouse without having to show proof of ancestry or answer any questions about who won the 1948 World Series.

During the hiatus, how many people will be snatched off the street by Arizona cops for having dark hair or the wrong inflection?  We know this will happen. We know this presents a massive problem, an enormous evil, and yet the Supreme Court heard argument on the validity of this very law without hearing a word about it.

Another guiding force in the utility of the legal system is judicial economy, not wasting the court’s time even though procedure might dictate the contrary.  To what end does the Court ignore the 800 pound gorilla (who will likely be incapable of proving citizenship) hearing argument and rendering a decision on a law like this? 

The law has come before the Court. The law has massive issues, and should it not be pe-empted, will cause substantial harm to a great many people.  And the Court could stop it before it happens, pre-empt the harm if you will.  Yet not a word was spoken about it, as if the tens of thousands of people who will most assuredly be seized to prove their worthiness of being in Arizona don’t matter at all.