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


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Jonathan H. Adler

Some cases before the Court will tee up larger issues the justices will have to confront down the road. For instance, in General Dynamics v. United Statesand Boeing v. United States, the Court will consider the “state secrets” doctrine, but not in the context of the “War on Terror.” Here the two defense contractors claim the government is unfairly using the doctrine to prevent them from defending themselves against the federal government’s breach-of-contract claims. According to the companies, they could not fulfill the terms of their contracts due to the military’s refusal to share relevant technological information with them. A more direct challenge to invocation of the “state secrets” doctrine in the War on Terror is still pending. Still other cases will force the justices to determine when exigent circumstances can justify warrantless police searches and what, if any, requirements the due-process clause places on states to ensure that parents are not wrongfully listed on a child-abuse registry.

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The newest justices’ commitment to stare decisis will be challenged in Bullcoming v. New Mexico, which revisits whether forensic evidence, in this case the results of a blood test in a drunk-driving case, is testimonial evidence subject to the requirements of the Sixth Amendment’s confrontation clause (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”). Only two years ago, the Court held that crime-lab reports may only be introduced if the lab technician who performed the work is available to testify, splitting 5–4 along non-ideological lines. However, two of the justices who joined Justice Scalia’s majority opinion — Justices Stevens and Souter — are no longer on the Court, and Justice Kennedy’s dissent made clear the dissenting justices would push for the Court to reverse course. This case could be their chance.

The justices are not done accepting cases, so more interesting issues could be added to the mix. Two pending cert petitions ask the Court to reenter the global-warming fray and consider the limitations on private and state-attorney-general tort suits alleging climate change constitutes a “public nuisance.” Several War on Terror and death-penalty cases could make their way up to the justices as well, and short supplies of the drugs used for lethal injection could force states to develop new execution protocols, triggering a wave of fast-tracked litigation challenging conventional approaches to capital punishment. Other high-profile questions, such as gay marriage, may have to wait until next term, if not later.

Throughout the term, the greatest attention will be paid to Justice Kagan, as her lack of judicial experience makes Court watchers keen to discern her judicial approach. Will she be a lockstep liberal like Justice Thurgood Marshall, for whom she clerked? Or will she reveal an independent streak? Will her time in the executive branch make her more sympathetic to government claims? Could that experience give her a soft spot for executive power? We won’t know until she’s had significant time on the Court. This term will only begin to provide us with answers.

Contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.



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