High Court Set to Open New Term

By Kenneth Jost
Supreme Court Editor, CQ Press
      The Supreme Court opens a new term on Monday (Oct. 4) with a new justice likely to miss a third of the year’s cases and a calendar missing the most hot-button legal issues of the day.
      The justices will be hearing two politically charged cases from Arizona later this fall. One tests how far states can go in enforcing federal laws against hiring illegal aliens. Another seeks to reinstate an Arizona law that allows tax credits to be used to fund scholarships for students at religious elementary and secondary schools.
      The court’s first week, which opens on the traditional First Monday in October, features an emotional case pitting the rights of anti-gay protesters against the privacy rights of the family of a deceased U.S. service member. In another speech-related case, the state of California is hoping to uphold a state ban on the sale or rental of violent video games to minors after lower federal courts struck it down.
      Missing from the 51 cases granted review so far for the term, however, are such issues as abortion and gay rights, including same-sex marriage. The justices have not taken on any broad challenges to the death penalty or any major racial discrimination or affirmative action cases. And the two lawsuits by some 20 states challenging President Obama’s health care reform are each at an early stage, probably two years away from reaching the high court.
      Justice Elena Kagan, who will take her place on the bench for the first time in a formal investiture on Friday (Oct. 1), will be absent from the bench for two dozen or more cases during the term. Under established rules of judicial ethics, Kagan is recusing herself from any case in which she participated as U.S. solicitor general before President Obama nominated her for the high court in May. The government routinely participates as a party or a “friend of the court” in more than a third of the 70-plus cases the court hears during a term.
      Kagan is widely expected to align with the court’s liberal bloc, which includes three other Democratic appointees: Stephen G. Breyer and the court’s two other women, Ruth Bader Ginsburg and Sonia Sotomayor. The court’s conservatives, all Republican appointees, include Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. Justice Anthony M. Kennedy, also a Republican appointee, often is a pivotal vote, but overall his record is generally conservative.
      As the successor to the court’s senior liberal, John Paul Stevens, Kagan does not change the ideological orientation of the court. But her absence from many cases will make it harder for the liberals to prevail because they will need to pick up two votes from the conservative wing, not just Kennedy’s. A 4-4 tie vote leaves a lower court decision in place, but sets no precedent for future cases.
      In the First Amendment case to be heard on Wednesday (Oct. 6), Snyder v. Phelps, the family of the late Marine Lance Corporal Matthew A. Snyder is seeking to reinstate a $5 million compensatory and punitive damage award against the Rev. Fred Phelps and his Westboro Baptist Church in Topeka, Kan., for their anti-gay picketing near Snyder’s funeral in western Maryland in 2006. Phelps and members of his family have picketed military funerals with epithet-laced signs depicting the deaths as divine punishment for tolerance of homosexuality. Snyder’s family won a jury verdict for intentional infliction of emotional distress and intrusion, but the federal appeals court in Richmond, Va., overturned the verdict and award on free-speech grounds.
      The federal appeals court in San Francisco also invoked the First Amendment in striking down California’s ban on violent video games for minors. In Schwarzenegger v. Entertainment Merchants Association, the state is asking the justices to apply a 1968 decision that upheld the sale of sexually explicit materials to minors even if they were not legally obscene for adults. The video game industry is arguing that the obscenity standard has never been applied outside the context of sexual materials. The case is to be argued on Election Day, Nov. 2.
      The first of the two Arizona cases to be argued, Arizona Christian School Tuition Organization v. Winn, is the state’s effort to revive a law passed in 1997 allowing taxpayers a tax credit of $500 per year for donations to state-regulated school tuition organizations. Taxpayer challengers contend the program violates the Establishment Clause because the organizations are free to award scholarships conditioned on attendance at religious schools. The case is to be argued on Nov. 3.
      The other Arizona case, Chamber of Commerce v. Whiting, pits business and civil rights groups along with the U.S. government against a 2005 state law that allows a company to be put out of business for repeat offenses of employing illegal aliens. The challengers say that the 1985 federal immigration law, which imposes lesser penalties and includes anti-discrimination safeguards, preempts the state measure.
      Research on the Web: The Supreme Court’s Web site, redesigned in March, includes docket information on the cases; the site links to an American Bar Association site for legal briefs in cases. The private, recently redesigned SCOTUSBlog maintains an exhaustive compendium of news articles, commentary, and legal filings on Supreme Court cases.