"Oyez, oyez, oyez!" The Marshal of the Supreme Court will shout that traditional declaration to begin the session of the high court on Oct. 4 as all the justices file into the courtroom. The high court has agreed to hear about 40 cases to this point, and it will likely take on another 40 for the term that runs from October to May. This year the court has a new member following Justice John Paul Stevens' retirement. Justice Elena Kagan, before she joined the high court, served as U.S. Solicitor General and thus was involved in a number of cases that the court will hear this term. She has recused herself from 21 cases, about half the cases scheduled so far. Here are some of the most important cases before the court:
Snyder v. Phelps
The infamous Westboro Baptist Church (not affiliated with any mainline Baptist denomination) headed by Fred Phelps Sr. and composed of his family, is in the dock over its right to protest at funerals. Phelps and other family members are known for appearing at funerals for fallen soldiers with signs like "Thank God for dead soldiers." The Supreme Court will decide whether that is protected speech and whether funeral protests constitute an invasion of privacy. Albert Snyder, the father of fallen Marine Lance Cpl. Matthew Snyder, sued Phelps and his church for protesting at his son's funeral with signs like "Matt in hell." The 4th U.S. Circuit Court of Appeals in April ruled in favor of Phelps, and ordered Snyder to pay Phelps' legal costs, $16,510. The ruling hasn't found popular support. People across the country donated money to Synder. A Facebook group titled "I support Al Snyder and his fight against Westboro Baptist Church" has 362,687 members. Forty-two senators have filed Supreme Court briefs in support of Snyder, as have 48 states, but media organizations including the Associated Press and The New York Times and groups like the American Civil Liberties Union have filed briefs in support of Phelps' case. The court will hear arguments in the case on Oct. 6.
Sossamon v. Texas
In 2006 Texas inmate Harvey Sossamon sued the state and his prison warden for violating his religious freedom because he was not allowed to use the prison chapel. The Religious Land Use and Institutionalized Persons Act of 2000 provides protection for inmates to practice their faith, and the 5th U.S. Circuit Court of Appeals ruled that the state had violated that law in preventing Sossamon from using the chapel for Christian worship. But the court also ruled that the state was not responsible to pay Sossamon damages. The high court will decide whether states are liable for damages in such cases. Prison Fellowship, in a brief in support of Sossamon, wrote that allowing prisoners to sue for actual damages "appropriately recognizes the harm of not only contravening a fundamental right to exercise religion but also the harm of cutting inmates off from the resources and relationships they need to transform their lives."
The National Association of Evangelicals, The Christian Legal Society, and other Christian groups have filed briefs in support of the prisoner. The U.S. government also filed a brief in support of Sossamon, which is why Kagan, who used to represent the government, recused herself from this case. The court will hear the arguments on Nov. 2.
Arizona Christian School Tuition v. Winn
Arizona has a school choice program that is becoming an increasingly popular alternative to direct vouchers: the state provides $500 tuition tax credits for individuals ($1,000 for married couples) who contribute to state-approved school tuition nonprofits of their choice. The tuition nonprofits then provide private school scholarships to families. The government is essentially providing matching funds in the form of tax credits for parents paying private school tuition. The 9th Circuit U.S. Court of Appeals ruled that the program violates the Establishment Clause because it funds religious schools, but the program's advocates argue that no religion is promoted because the tax credits are equally available and parents can choose where to spend them, at religious or nonreligious schools. The program has been in place since 1997. Last year 27,582 students benefited from the credit, attending 370 private schools. About 270 of them had some kind of religious affiliation.
The Supreme Court will decide whether the constitution allows such a program, determining the direction of other states like New Jersey considering such an approach. Already Georgia, Louisiana, Pennsylvania, Iowa, Minnesota, Illinois, Rhode Island, and Florida offer some form of tuition tax credits. Tuition tax credits have more bipartisan support than vouchers. The court will hear arguments for the case on Nov. 3.
U.S. Chamber of Commerce v. Whiting
Much of the debate over the new immigration law in Arizona stems from the question of whether the Arizona law may trump federal law. A case coming before the Supreme Court this term could set the table for whether states can create immigration laws that preempt federal laws. In 2008 Arizona passed a law imposing sanctions on employers who hire illegal immigrants and required that employers check the immigration status of potential hires in a federal database. According to federal law, however, employers can choose whether to check the database. In U.S. Chamber of Commerce v. Whiting, the high court will decide whether Arizona has the right to make a law that goes beyond federal hiring statutes.
Kagan has also recused herself from this case. The court hasn't set a date for arguments.
Spending in campaigns to elect judges at state levels has more than doubled in the last decade, according to a new report, resurrecting a debate over the wisdom of electing judges in the first place. Individuals and groups have poured $207 million into judicial races in the last decade, compared to $83 million in the previous one, according the report by the Brennan Center for Justice, Justice at Stake, and the National Institute on Money in State Politics. More than a dozen states this year are holding elections for positions on state Supreme Courts.
Critics of the current system of electing judges say campaign money biases judges in cases or creates the appearance of bias. The alternatives they propose are nonpartisan commissions that would select judicial nominees based on merits. But supporters of judicial elections say such commissions would be just as political and wouldn't have the public accountability that comes with an election.
Former Michigan Supreme Court Chief Justice Cliff Taylor supports judicial elections even though he lost his in 2008 after a decade of service on the court. While judicial elections aren't "flawless," he says they are a better alternative to the commission model, which he believes isn't truly based on merit. "It's all very subjective once you get past [law school] grades," he said recently in comments at the Heritage Foundation. For candidates at the state Supreme Court level, resumés are going to generally look the same. "Bums don't apply for these high-level posts," he said, so the debate becomes more about their politics than their qualifications.
But critics and supporters of the current system don't fall along partisan lines. Abolishing judicial elections has become a mission for retired Supreme Court Justice Sandra Day O'Connor, who started her career as a state judge in Arizona before President Reagan nominated her to the high court in 1981. In Arizona, the governor appoints judicial nominees from a bipartisan commission, a model O'Connor supports.
One drawback to judicial elections that Taylor recognizes is that a judge's decisions can be quickly distorted to political ends. For example, a ruling in favor of a criminal defendant, regardless of the nuances of the case, can make the judge look "soft on crime."
Wisconsin, North Carolina, and New Mexico have addressed concerns about judicial independence by publicly financing judicial campaigns. And in June, the U.S. Supreme Court issued a ruling in Caperton v. Massey Coal that an elected judge must recuse himself from cases in which large campaign donors are involved.