Oyez, Oyez! Justice Elena Kagan Joins Supreme Court

Cases Scheduled on Death Penalty, First Amendment; Court term begins Monday

September 28, 2010, 4:04 PM

October1, 2010 -- Elena Kagan took her seat on the Supreme Court's bench today for the first time during a swearing-in ceremony attended by President Barack Obama and Washington's top legal and political dignitaries.

The President sat in the front row, flanked by retired justices Sandra Day O'Connor, David Souter and John Paul Stevens.

After the nine-minute investiture, Kagan went out the front doors of the court and, joined by Chief Justice John Roberts, took the traditional walk down the white marble stairs.

Today was strictly ceremonial. In August Kagan took the oath of office in a private ceremony so that she could immediately hire clerks and begin reviewing cases.

The new term begins Monday.

Some of the cases this term include:

Most people agree that the protests by members of the Westboro Baptist Church at Lance Cpl. Matthew Snyder's funeral were offensive, but the question is whether they were unconstitutional.

Members of the Church carried signs saying, among other things, "Thank God for dead soldiers," and "God hates Fags" during a protest near the funeral. Snyder, who was not homosexual, was killed in Iraq in March of 2006.

Snyder's funeral was only one of many the church has targeted across the country because its members believe the deaths of soldiers are related to the sins of Americans. Snyder's father, Albert, sued in federal court, claiming that members of the church invaded his family's privacy and inflicted emotional distress. The elder Snyder won $5 million. But a federal appeals court overturned the ruling, agreeing with the Westboro Church that its protest was "rhetorical hyperbole" protected by the First Amendment.

Albert Snyder brings his son's case to the Supreme Court, arguing in part that the court "should not extend First Amendment protection to outrageous, intentionally harmful, expressive conduct targeted at private individuals."

At issue is a California law restricting the sale of violent video games to minors. Lawyers for Governor Arnold Schwarzenegger say the games, in which players can kill, maim, dismember or sexually assault the image of a human being, should be banned for sale to minors.

In court papers, lawyers for the makers of the games say the California law is the "latest in a long history of overreactions to new expressive media." They argue that it is not the role of government to decide which media are worthy of Constitutional protection, and that parents don't need the state's assistance in deciding which expression is worthwhile for their children. A lower court sided with the industry.

Supreme Court Cases for New Term

This case turns on the deathbed confession of a prosecutor. Years earlier, he had deliberately buried blood evidence favorable to the case a man named John Thompson, who had been convicted in New Orleans of armed robbery and capital murder. Thompson had been sentenced to death and was scheduled to die on May 20, 1999.

However, just weeks before the execution, Thompson's attorneys discovered the hidden evidence. The execution was stayed, and Thompson was eventually found not guilty of murder. Thompson sued the district attorney's office, run by Harry J. Connick (the father of the famous singer) and won $14 million in a civil rights judgment ($1 million for each year he served on death row).

The judgment was based on the jury's finding that Connick had been "deliberately indifferent" to the need to train his prosecutors. In briefs Thompson's lawyers write: "the behavior of the prosecutors in this case -- from the district attorney on down -- shocks the conscience." But lawyers for Leon A. Cannizzaro Jr., the current Orleans Parish District Attorney, argue that it was wrong for a jury to find the district attorney's office guilty "not for its own wrongdoing, but for wrongdoing by its employee."

At issue before the Court is whether the district attorney's office can be held liable for such a violation.

Henry Skinner was within a couple hours of his execution when the Supreme Court intervened. The Court has agreed to hear his case asking whether he could bring his request for DNA evidence as a civil rights claim.

Skinner was convicted in 1995 in Texas of killing his girlfriend, Twila Busby, and her two adult sons. Skinner, who said he doesn't remember much from the nights of the murders, says he could never have killed anyone because he was too incapacitated by massive quantities of alcohol and codeine.

Since his conviction, he has sought testing of the remainder of DNA material found at the crime scene. Although the State of Texas agreed to more testing, it did not test Ms. Busby's fingernail clippings, a bloody towel and two knives that were at the crime scene.

In court papers attorneys for the Texas district attorney argue that Skinner was proven guilty of the murders based not only on some DNA but on "extraordinary amounts of other physical evidence, his own statements, and numerous witnesses' testimony." The lawyers argue that states have important interests in "preserving the finality of valid convictions" as well as "avoiding the costs associated with defending successive, meritless challenges to convictions and sentences."

The high court will focus on a narrow procedural issue that has split some of the circuit courts: Can such a claim be brought as a civil rights claim, or is it restricted to the more traditional route of writ of habeas corpus -- the right of a defendant to know all the evidence against him or her?

According to Nina Morrison, a staff attorney at the Innocence Project, "This case is about equal access to justice and whether the civil rights law can be used to keep innocent people from being executed for crimes they didn't commit. Even though the court will consider a narrow procedural issue regarding which legal action is the appropriate one to bring for DNA testing, it raises issues of fairness and accuracy in the administration of the death penalty that have been in the forefront of the justice system over the last decade."

Supreme Court Cases for New Term

The Supreme Court will consider the Legal Arizona Workers Act, which penalizes employers for knowingly or intentionally employing unauthorized aliens. The government urged the court to hear the case, arguing that federal law preempts the Arizona law.

In court papers, Acting Solicitor General Neal Katyal argues that local governments are enacting laws on the employment of aliens that have "generated confusion" and "will continue to do so absent guidance from either Congress or this Court."

Katyal writes that provisions similar to the Legal Arizona Workers Act "disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers no discriminate against racial and ethnic minorities legally in the country."

Immigration rights groups have joined with the business community to oppose the law.

"The confusing patchwork of immigration regulations doesn't solve our immigration problems, and instead makes it more difficult for employers to create jobs and grow the economy," said Robin Conrad, executive vice president of the National Chamber Litigation Center in a statement.

The case is being carefully watched as a possible precursor to another Arizona law that broadens police power to check for identification of suspected illegal immigrants. A challenge to that law could reach the high court in the coming terms.

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