Drama Awaits New Jurist

by Erwin Chemerinsky

When the justices take the bench on Monday, October 4, the most notable difference will be the absence, after 35 years, of Justice John Paul Stevens and the presence of Justice Elena Kagan. Throughout the term, legal commentators and no shortage of bloggers will focus their attention on whether this replacement in any way changes the Court's overall ideological balance.

As always, before it adjourned for the summer on June 29 the Court set about half of the docket for the coming term, with the rest to be determined by early January as additional cases are accepted for review. Here is an early glimpse of some noteworthy cases set to be decided.

Free Speech
One case attracting significant media attention involves a California law that prohibits the sale or rental of violent video games to minors. The law also requires the labeling of such games. Both the federal district court and the Ninth Circuit found that the law violated the First Amendment. In Schwarzenegger v. Entertainment Merchants Ass'n, the Court will consider the ability of the government to regulate violent speech and, for the first time, deal with the medium of video games (556 F.3d 950 (9th Cir. 2009), cert. granted, 130 S. Ct. 2398 (2010)).

Another high-profile case concerns protests at military funerals. At issue is whether a tort suit for intentional infliction of emotional distress by such behavior violates the First Amendment (Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010)).

In 2006 Matthew Snyder, a Marine lance corporal, was killed in the line of duty in Iraq. The members of the Westboro Baptist Church in Topeka, Kansas - including its founder, Fred W. Phelps Sr. - picketed Snyder's funeral, as they had done at other military funerals, to communicate their message that God hates America because of its tolerance for homosexuals. Phelps and the other defendants also posted on the church's website a statement criticizing Snyder's parents for "rais[ing] him for the devil."

Snyder's father sued and won on claims of intentional infliction of emotional distress and intrusion upon seclusion. The jury awarded $2.9 million in compensatory damages and $8 million in punitive damages (later reduced to $2.1 million). The Fourth Circuit reversed the award on First Amendment grounds. The case presents a difficult question of how to balance freedom of speech against the desire to protect the privacy of mourners.

Criminal Procedure
Six years ago in Crawford v. Washington (541 U.S. 36 (2004)), the Court changed criminal trials by holding that a prosecutor could not use a written testimonial statement from an unavailable witness when there was no opportunity for cross-examination, even if the statement was reliable. Ever since, trial courts across the country have struggled to define which statements qualify as testimonial.

This term the Court may shed more light on this important matter when it decides Michigan v. Bryant (483 Mich. 132, 768 N.W. 2d 65 (2009), cert. granted, 130 S. Ct. 1685 (2010)). The context is a murder case in which, shortly before dying, the victim identified defendant Richard Bryant as his assailant. The issue, which arises in countless cases, is whether the dead victim's statement is testimonial and therefore inadmissible (as the Michigan Supreme Court held), or nontestimonial and admissible to support a conviction.

Among other important criminal procedure developments, last term the Court found ineffective assistance of counsel in three cases: Sears v. Upton (130 S. Ct. 3259 (2010)), Padilla v. Kentucky (130 S. Ct. 1473 (2010)), and Porter v. McCullom (130 S. Ct. 447 (2009)).

This term the issue resurfaces in Belleque v. Moore, where the Court will consider whether a defense attorney's failure to file a motion to suppress evidence of the defendant's confession amounted to constitutionally defective representation (574 F.3d 1092 (9th Cir. 2009), cert. granted, 130 S. Ct. 1882 (2010)). The Court also will weigh, in the habeas corpus context, the degree of deference to be accorded a state court's summary disposition of a claim of ineffective assistance of counsel (Harrington v. Richter, 578 F.3d 944 (9th Cir. 2009), cert. granted, 130 S. Ct. 1506 (2010)).

Yearning to Be Free
Politically, there's no topic hotter than immigration, and specifically what to do about illegal immigration. The high court will confront that dilemma head-on as it considers whether federal law preempts an Arizona statute imposing sanctions on employers who hire undocumented aliens (Chamber of Commerce v. Candelaria, 558 F.3d 856 (9th Cir. 2009), cert. granted, 130 S. Ct. 3498 (June 28, 2010)).

The case turns in part on whether the Arizona law violates a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions ... upon those who employ ... unauthorized aliens" (8 U.S.C. § 1324(a)(h)(2)). A second question is the extent to which federal law wholly occupies the field and thus preempts state and local efforts to control illegal immigration. The case offers a timely window through which to assess how the justices might deal with Arizona's controversial SB 1070 (the law authorizing local police to stop persons they suspect are undocumented aliens) if and when it comes before them for review.

Civil Rights
An exceptional number of cases raise important civil rights issues. In one, the Court will consider whether the California Child Abuse Central Index (CACI) violates due process because accused individuals placed on the list have no fair means by which to challenge or remove their names from it (Los Angeles County v. Humphries, 554 F.3d 1170 (9th Cir. 2009), cert. granted, 130 S. Ct. 1501 (2010)).

Craig and Wendy Humphries were accused of abuse by a rebellious child. The case was dismissed after a doctor confirmed that the abuse could not have occurred. The criminal court found the Humphrieses factually innocent, then sealed and destroyed all court records.

However, the couple was listed on the CACI as "substantiated child abusers," and no procedure was available to remove them from the data bank. At issue is whether the lack of a corrective procedure denied them due process.

The Court also will consider whether money damages can be recovered from a state government or state official for violating the Religious Land Use and Institutionalized Persons Act (42 U.S.C. § 2000cc). The case (Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009), cert. granted, 130 S. Ct. 3319 (2010)), which stems from a policy prohibiting prison inmates confined to their cells from participating in religious services, will be among the first through which the Roberts Court deals with the scope of sovereign immunity for state governments.

In another case, the court will decide whether Title VII's prohibition against retaliation forbids an employer from inflicting reprisals on a third party, such as a spouse, family member, or fiancé of the person who filed the underlying discrimination complaint (Thompson v. North American Stainless, 567 F.3d 804 (6th Cir. 2009), cert. granted, 130 S. Ct. 3542 (June 29, 2010)).

Finally, the Court will consider who has standing to challenge a state tax credit for parochial school tuition-and whether such a program violates the Establishment Clause (Arizona Christian School Tuition Organization v. Winn, 562 F.3d 1002 (9th Cir. 2009), cert. granted, 130 S. Ct. 3350 (2010)).

With these cases on the docket and more to come, clearly Justice Kagan's first term on the Court will be a dramatic one, and sure to provide the public with a good look at her judicial philosophy.

Erwin Chemerinsky is the dean and a professor at UC Irvine School of Law. Students Lori Speak and Tracey Steele provided research assistance.

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