Why Is Ariz. Such a Hotbed of High Court Action?

Marcia Coyle

The National Law Journal

The first decision likely to spring to mind when thinking of Arizona and the U.S. Supreme Court is the 1966 landmark Miranda v. Arizona. While that case probably won't be surpassed in terms of impact any time soon, the Grand Canyon state is the source of three major high court cases this term that are capturing national attention.

The three cases include challenges to Arizona's immigration requirements for employers, a state school choice program and the state's clean elections law. Also looming on the horizon is the Obama administration's challenge to the state's controversial law that gives police broad powers to stop those they suspect are in the country illegally.

So what the heck is going on in Arizona? "Arizona is indeed trying to fill the Supreme Court's docket," chuckled Clint Bolick, director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Phoenix. The institute is a self-described independent government watchdog committed to expanding free enterprise and liberty.

Bolick is co-counsel with the center's Nick Dranias on the election petition -- McComish v. Bennett. A companion case, Arizona Freedom PAC v. Bennett, is being handled by the public interest law firm that Bolick co-founded in 1991 -- the Institute for Justice in Arlington, Va.

"I think there are two explanations, and one is dominant," Bolick suggested for the influx of Arizona cases. "Arizona is taking the concept of states being the laboratories of democracy very seriously on multiple fronts.

"We have a legislature that is risk-taking and innovative. For conservatives in particular, the realm of the possible is greater in Arizona today than any other place." And, he added, when the Obama Administration is taking legal positions counter to conservative-libertarian beliefs, someone has to step forward to articulate those beliefs. "I think we're doing that in all sorts of ways."

The second "less significant reason, but nonetheless still very significant reason" is that Arizona resides in the U.S. Court of Appeals for the 9th Circuit, said Bolick. "The 9th Circuit does not like things that Arizona does and the Supreme Court does not like things the 9th Circuit does," he explained.

If the very same McComish decision had come from another circuit, Bolick said, it was unlikely his clients would have gotten the injunction it now has. "Justice [Anthony] Kennedy rides the 9th Circuit very hard," he said. "It's both our scourge in the decisions that come out of that circuit, but also our crown jewel in opportunities to get cases up to the Supreme Court."

Clark Neily III of the Institute for Justice agreed, saying, "Arizona is a place that has a fairly strong conservative-libertarian history and finds itself in the 9th Circuit which obviously doesn't. If what you're looking for are conflicts, maybe there is sort of an ideal dynamic there." He added that the term does feature "an unusually large number of cases from a state with such a small area of population.

The Institute, which has an Arizona affiliate, is representing not only the Arizona Freedom Club PAC in the campaign finance case, but also is involved in the school choice tax credit case -- Arizona Christian Tuition Organization v. Winn (combined with Garriott v. Winn).

Although their organizations are relatively small, Neily and Bolick clearly are energized by what faces them in the Supreme Court this term. Bolick, who argued and won the 2005 decision striking down laws barring the direct interstate shipment of wine to consumers and has been a leading litigator in the school choice movement, said McComish, if granted review, would be his center's first Supreme Court case.

"We're plowing new ground here," said Bolick. "The nice thing is the conservative public interest law movement has become more sophisticated than it was in the past. That helps even a solo practitioner like Alan Gura (who argued and won the Supreme Court's recent Second Amendment decisions) to function very, very effectively.

"You're going to have top quality moot courts, a plethora of well-coordinated amicus briefs, and a great deal of chatter in the media and social media by supportive people. That means the lawyers are able to concentrate on the nuts and bolts of litigation."

That was not the case even 10 years ago, he added. "For a group like Goldwater to have a case in the Supreme Court, a major new lawsuit filed (challenging federal health care reform) and a full caseload, it really does not tax our resources to prepare for a Supreme Court argument. The public interest law movement has basically created a large firm infrastructure second to none."

And that groundwork also has paid off for the Institute for Justice, no stranger to the Supreme Court.

"We have subject matter specialists," said Neily. "We have a whole team devoted to campaign finance and in just a few years they have gotten really up to speed. It's the same thing with school choice, which we've been involved in since we opened our doors 20 years ago. We've done this enough times now that we're not learning how to do it."

Bolick believes Arizona will be at the "epicenter" of federalism disputes for some time. And, he added, "Aside from the unbelievable heat, Arizona is just a great place."

Here's a quick look at the Arizona cases:

Chamber of Commerce of United States v. Candelaria asks the Court whether the Legal Arizona Workers Act is preempted by federal law. The state law allows the superior courts of Arizona to suspend or revoke the business licenses of employers who knowingly or intentionally hire unauthorized aliens and also imposes sanctions on those employers. The U.S. Court of Appeals for the 9th Circuit upheld the state law.

Arizona Christian Tuition Organization v. Winn (consolidated with Garriott v. Winn) thrusts the justices back into the school choice debate. The 9th Circuit this time found unconstitutional the state's program offering tax credits for donations made to organizations that give scholarships for children to attend private schools -- the majority of which are religious schools.

McComish v. Bennett (with Arizona Freedom PAC v. Bennett) attacks the matching funds provision in Arizona's "Clean Elections" law. The 9th Circuit rejected the challenge to the law, and the Supreme Court in June stepped in to prohibit the state from giving matching funds in the 2010 elections, pending the filing and disposition of a timely petition for certiorari. The petitions in McComish and Arizona Freedom PAC were filed Tuesday and experts predict the justices will grant review because of a split among the circuits.

And, of course, slowly but surely working its way to the Supreme Court is the Obama administration's challenge to SB 1070, considered the toughest immigration law in the country. In addition to giving police officers broad power to detain suspected illegal aliens, the state law makes the failure to carry immigration documents a crime. The law has triggered multiple lawsuits.