The U.S. Supreme Court on Thursday declined to put a hold on a federal appeals court decision last month that found Arizona's Proposition 100, which denied bail to some undocumented migrants, unconstitutional.
But in an unusual companion note to the court's action, Justices Clarence Thomas and Antonin Scalia strongly suggest that the court should have issued a stay. And what's more, they suggest the court should have taken the appeals in recent sex-marriage cases, too.
Prop 100, approved by Arizona voters in November 2006, amended the state’s constitution to prevent the granting of bail to defendants in serious felony cases if they had entered or remained in the U.S. illegally.
The 9th U.S. Circuit Court of Appeals declared the law unconstitutional in October, and on Thursday the U.S. Supreme Court denied a request to put that ruling on hold while the state pursues an appeal.
Writing for himself and Justice Scalia, Thomas said they joined the rest of the court in denying the emergency appeal, but he said he did so because it's unlikely the request would get enough votes on the court. That, he said, is unfortunate.
Thomas said the Supreme Court is very likely to review lower court decisions that strike down federal laws as unconstitutional. "States," he says, "deserve no less consideration."
It's true, Thomas wrote, that the Supreme Court sometimes does grant review of decisions striking down state laws, even in the absence of a disagreement among lower courts, "But for reasons that escape me, we have not done so with any consistency, especially in recent months." He then mentioned the recent cases on gay marriage the court declined to hear.
"At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment."
The Supreme Court has yet to decide whether to hear a full appeal in the Arizona bail case. Thomas said he hopes his prediction is wrong about whether the court would agree to hear the case.
"Our recent practice, however, gives me little reason to be optimistic," he wrote.
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