The U.S. Supreme Court begins a new term today with a new justice — at least initially.
Elena Kagan, confirmed this summer to replace retired Justice John Paul Stevens, was deeply involved in so many prominent appeals as President Barack Obama’s solicitor general that she’ll have to sit out more than half of the court’s docket. At most, she’ll sit in for arguments on just 18 of the 39 cases before the court.
The high court reworked its schedule to ensure Justice Kagan would be seated for its first arguments this morning, on a bankruptcy case. But she’ll leave the room for the day’s second case. That will be a frequent sight through spring.
That creates the possibility of many 4-4 decisions — if centrist Justice Anthony Kennedy awakes on the left side of his bed — that affirm the ruling of the lower court but do not have the effect of setting national precedent.
Look for the justices to try to reach a narrow consensus on those cases, so as not to completely waste the court’s time.
Justices will hear arguments Wednesday on a case with significant free-speech ramifications. The family of a Marine killed in Iraq sued the loathsome Westboro Baptist Church for protesting the man’s funeral. The church accuses the federal government of promoting homosexuality, and its members applaud the deaths of American service members as a sign that God hates gays. Their protests are beyond poor taste — they’re disgusting.
But the demonstrations clearly are protected by the First Amendment. The Supreme Court should uphold a lower court ruling in favor of the church.
Two Arizona cases loom large on the calendar.
One involves the state’s attempt to crack down on illegal immigrants by sanctioning or shutting down businesses that knowingly hire them. Justices will be asked by the government to rule that immigration is a federal matter, and that state statutes cannot co-exist with federal laws. The court’s ruling could provide a preview to an anticipated future showdown over Arizona’s newer, far more controversial immigration law — SB 1070 — which is early in the appeals process.
The other Arizona case has implications for school choice initiatives, such as vouchers. The state’s tax-credit scholarship program gives taxpayers the choice of forwarding funds to private religious schools, which critics argue violates the First Amendment’s establishment clause.
The law leaves the choice of how to use the money in the hands of individuals, not the state. The court should allow the law to stand.