Kagan’s Court Debut
Will the new justice have much effect on what could be a sleeper term?


Jonathan H. Adler

The Arizona case is but one of several preemption cases before the Court. In Williamson v. Mazda Motors of America, the justices will consider whether federal motor-vehicle-safety standards preempt tort suits alleging carmakers were negligent for failing to adopt additional safety measures, in this case a combination lap/shoulder belt in the rear-aisle seat of a minivan. In Bruesewitz v. Wyeth, the question is whether the National Childhood Vaccine Injury Act preempts tort suits alleging that a vaccine’s design created an unnecessarily high risk to recipients. In AT&T Mobility v. Concepcion, the Court will consider whether the Federal Arbitration Act preempts states from barring class-arbitration waivers in arbitration agreements. These cases, along with others relating to employment law, securities, and class-action litigation, make this a potentially significant term for American business.

Two First Amendment cases are sure to garner significant public attention. In Schwarzenegger v. EMA, the Court will evaluate a California law prohibiting the sale of violent video games to minors. The crucial questions are whether depictions of extreme violence, like obscenity, are subject to a lesser degree of constitutional question, and the extent to which governments may adopt targeted measures to limit the availability of such materials to children. In Snyder v. Phelps, the Court will review the constitutionality of a tort judgment against a fringe religious group for staging a protest at the funeral of a fallen Marine. The Marine’s family successfully sued the protestors for intentional infliction of emotional distress and invasion of privacy, among other things, but the judgment was overturned on the grounds that the protest was protected by the First Amendment. The protest was not targeted at this Marine but at broader policy questions, such as the nation’s alleged permissiveness of homosexuality, but it is not clear which way this fact cuts. The protesters may be focused on larger matters of public concern, but the fallen Marine is not a “public figure,” nor would everyone consider a private funeral an expressive public event.

The biggest religion-related case on the docket thus far, Arizona Christian School Tuition Organization v. Winn, involves a constitutional challenge to an Arizona program offering tax credits for contributions to private scholarship funds, including those devoted to religious schools. The program is almost certainly constitutional under the Supreme Court’s decision upholding school vouchers in Cleveland, Ohio, but the U.S. Court of Appeals for the Ninth Circuit somehow did not see it that way. A reversal on the merits would be almost certain, but only if the justices get that far. A threshold question is whether the plaintiffs had standing to challenge the tax-credit program in the first place. The Court is generally skeptical of suits in which taxpayers sue to challenge the allegedly unconstitutional expenditure of government funds, except when it comes to establishment clause claims. The idea is that such arguments should be presented to the political branches, rather than the courts. In this case, there is an extra wrinkle, because the plaintiffs are not challenging direct government expenditures but tax credits, a fact that could further raise the standing bar.

The Court will also consider both substantive and jurisdictional issues in Schwarzenegger v. Plata, in which California is challenging a federal court order to release prison inmates to remedy allegedly unconstitutional prison conditions caused by prison overcrowding. The lower court concluded that prisoner release was necessary to prevent continued violations of inmates’ constitutional rights. California challenges this conclusion and further argues that the prisoner release failed to satisfy the requirements of the Prison Litigation Reform Act, which only allows such judicial remedies as a “last resort.” The prisoners, for their part, argue the Supreme Court lacks jurisdiction to hear the case, as any appeal of the release order must first be heard by the U.S. Court of Appeals for the Ninth Circuit. Should the Court reach the substantive question, it will clarify the authority of federal judges to order prisoner release and other measures to address overcrowding and other prison-management concerns. Whatever the current problems of state-prison management, there is reason to wonder whether the proper remedy is to turn such management decisions over to federal judges.