Fordham Law


Supreme Court term has free-speech and immigration cases

Benjamin Zipursky in Reuters, October 03, 2010

Media Source

By James Vicini

WASHINGTON | Sun Oct 3, 2010 8:17am EDT

WASHINGTON (Reuters) - The Supreme Court will consider important cases on anti-gay protests at military funerals, violent video games and immigration law during its new term that begins on Monday.

The nine-member high court will open its 2010-11 term with a new member on the bench, Justice Elena Kagan, who was appointed by President Barack Obama.

Kagan succeeded Justice John Paul Stevens, who retired in June. She probably will not change the court's balance of power, which is widely seen as remaining closely divided with a five-member conservative majority and four liberals.

The conservative Republican appointees are Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.

Besides Kagan, the Democratic appointees on the left are Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, the court's first Hispanic who was appointed by Obama last year.

"While the conservative credentials of the Roberts court have been well-established by now, this term may tell us something more about its particular brand of conservatism," said Steven Shapiro of the American Civil Liberties Union.

He said the term could show whether the current court is more concerned about corporate rights and less concerned about states' rights than the court under the previous chief justice, the late William Rehnquist.

One of the term's most closely watched cases will be argued on Wednesday when the justices consider whether free-speech rights protect anti-gay protests by members of a small Kansas church at funerals for U.S. military members killed in Iraq.

Fordham University law professor Benjamin Zipursky said an appeals court overextended free-speech rights and interfered with a father's right to hold a peaceful, dignified funeral for his son who died in Iraq.

MISTAKE OF JUDGMENT

"Let's hope the Supreme Court corrects this serious mistake of judgment and misapplication of law," he said.

Another major free-speech case will be argued in November, when the justices consider a California law banning the sale and rental of violent video games to minors.

"This would be a major, major upheaval of the law if the court upholds the statute," said attorney Maureen Mahoney, who frequently appears before the court. "If you can prohibit sales to minors in (video games) because of violence, presumably you can do it in other areas, like literature."

The Supreme Court in a number of past cases has decisively upheld free-speech rights over government regulation.

In December, the justices will hear arguments on whether federal immigration law pre-empts Arizona's efforts to impose its own severe sanctions on employers who hire illegal immigrants. Immigration has become an increasingly contentious political issue in the United States.

The justices have a number of business cases on the term's docket, including a Swiss watch copyright dispute, vaccine-maker liability and an appeal by defense contractors over the Pentagon's cancellation nearly 20 years ago of a stealth fighter jet contract.

"Recent claims that business cases have begun to dominate the Supreme Court docket or that the court is biased in favor of business interests are not borne out by the data," said Mayer Brown attorney Lauren Goldman, who analyzed the business docket.

Kagan, who had previously been the Obama administration's solicitor general in representing the federal government before the Supreme Court, has removed herself from slightly less than half of the pending cases.

Legal experts said this term may end with more uncertainty about a number of important questions because Kagan's recusals could leave the court deadlocked by a 4-4 vote and unable to decide some cases.