Supreme Court prepares to study hot-button issues

 

Kagan’s role to be analyzed for hints on future rulings

By Adam Liptak
New York Times / October 3, 2010
WASHINGTON — The new Supreme Court term, which begins tomorrow, includes cases on some of the most contested issues of the day, including protests at military funerals, support for religious schools, violent video games, DNA evidence, and prosecutorial misconduct.

The term’s arguments and decisions will be scrutinized for insights into the thinking of the court’s newest member, Justice Elena Kagan, and for hints about how the court will rule when even more highly charged cases reach it, probably in a year or two, on federal health care legislation, same-sex marriage, the treatment of gay members of the armed services, and the recent Arizona law giving police greater authority to check the immigration status of people they stop.

The marquee case on the docket so far is a suit brought by the father of a fallen Marine against a small Kansas church whose members protested at his son’s funeral. The case, to be argued Wednesday, is freighted with rage on both sides.

“Since when did any of our military die so that a group of people could target their families and harass them?’’ asked the Marine’s father, Albert Snyder, who won an $11 million jury verdict against Westboro Baptist Church of Topeka, saying it had caused him emotional distress.

An appeals court threw out the award on First Amendment grounds, saying the signs carried by the protesters — featuring messages like “God Hates Fags’’ — were not directed at the Marine, Lance Corporal Matthew A. Snyder, or meant to convey factual assertions about him, but were instead protected commentary on matters of public concern.

The elder Snyder said that ruling was perilous. “If the law can’t help us and the courts won’t do something,’’ he said, “someone is going to take this into his own hands.’’

Margie J. Phelps, a daughter of the pastor of the church, will argue the case in the Supreme Court. She agrees that the case arrives at the Supreme Court at a volatile moment.

“We are a little church in the middle of the country that will not back down from the mob rule mentality that has taken over this country,’’ she said. “We are bringing the words of life and faith to a nation threatened with destruction.’’

In a second major First Amendment case, Schwarzenegger v. Entertainment Merchants Association, the court will decide whether states may restrict the sale of violence-themed video games to minors. Video dealers filed a lawsuit to challenge a California law limiting such sales. The lower courts in that case and courts considering similar questions have uniformly said no.

The Supreme Court has never extended to violence-tinged materials the principles that allow regulation of sexual materials. But the justices agreed to hear the video games case in April, just days after striking down a federal law making it a crime to sell dogfight videos and other depictions of animal cruelty.

The court’s business docket will be busy, too. After a one-year hiatus, the court will resume its scrutiny of an issue that often divides conservatives: Who should prevail in tensions between federal and state efforts to regulate matters like vaccines, seat belts, and arbitration?

Business groups generally say there should be a US standard rather than a patchwork of state and local laws. But conservatives committed to federalism say states have a separate role in regulating products and practices that could harm their residents.

The strange bedfellows quality of the issue, known as preemption, is illustrated by a brief filed in Bruesewitz v. Wyeth, on behalf of Kenneth W. Starr and Erwin Chemerinsky. Starr, a former appeals court judge and independent counsel in the Whitewater investigation during the Clinton administration, is a conservative. Chemerinsky, the dean of the law school at the University of California Irvine, is a liberal.

But they agreed that the parents of a girl who they say was injured by a vaccine should be able to sue its manufacturer under Pennsylvania law, notwithstanding a federal law that protects vaccine makers. The Obama administration, on the other hand, filed a brief backing the manufacturer, saying a federal compensation system displaced state law.

In a second preemption case, involving seat belts, Williamson v. Mazda, the administration is on the other side of the question. In that case, the Justice Department has filed a brief supporting the estate of a woman killed in a car accident.

The car, which met federal safety standards, had shoulder and lap belts for some seats but only a lap belt in the seat occupied by the woman, Thanh Williamson.

The federal government argued that Williamson’s family should be able to sue under state law because federal standards set a floor but not a ceiling on safety and that states are free to require more stringent standards.

Kagan has disqualified herself from both preemption cases because she worked on them as US solicitor general. She will not participate in about half of the 54 cases on the docket so far, raising the possibility of 4-to-4 deadlocks that automatically affirm the ruling below.

Among other cases in which the absence of Kagan could make a difference is Chamber of Commerce v. Whiting, which could determine whether federal immigration law displaces an Arizona law that imposes harsh penalties on businesses that hire illegal immigrants.

© Copyright 2010 Globe Newspaper Company.  To subscribe or visit go to:  http://www.boston.com