Supreme Court Preview: Marcia Coyle on the Cases and Justices to Watch

BY Beth Summers  September 29, 2010 at 2:30 PM EDT

Photo via Flickr/Creative Commons by swatjester

Do a Kansas preacher and his anti-gay followers have a constitutional right to picket and protest during the burial of a Marine who was killed in Iraq? How far can the government go in checking the background of a potential employee before violating the individual’s right to privacy? And can a state restrict the sale of violent video games to minors without running afoul of the First Amendment?

The Supreme Court will face those difficult questions and others when the new term begins, as is its tradition, on the first Monday in October. Marcia Coyle, Chief Washington Correspondent for the National Law Journal and regular NewsHour analyst, recently briefed The Rundown on what she’ll be watching as the term begins:

What are the key cases to watch for in the 2010-2011 Supreme Court term?

MARCIA COYLE: There are no apparent blockbusters on the docket just yet, no case that rises to the level of last term’s decisions permitting corporate money to flow freely in federal elections and applying the Second Amendment right to own a gun to the states. But it’s the rare term that doesn’t provide some major ruling and the docket already is chock full of important and interesting cases.

How will the addition of the newest justice, Elena Kagan, impact the makeup of the court? And how will we feel the absence of Justice John Paul Stevens?

MARCIA COYLE: This term will be historic. At exactly 10 a.m. on the first Monday when the red velvet curtains behind the justices’ bench part, three women for the first time in history, will step forward to take their seats. It shouldn’t be a big deal in 2010 when women have taken their places in boardrooms, Congress and other critical positions. But it is a big deal in an institution that has lacked real diversity for such a long time. Something for all of us to watch is whether having three women on the Supreme Court makes a difference in any significant way.

The term also will have its first non-judge justice in more than three decades. How will this non-judge justice — former Harvard Law dean and Solicitor General Elena Kagan — judge? How will she approach the cases before her?

And who will become the leading voice of the more liberal members of the court now that Justice John Paul Stevens, a major force by virtue of both his intellect and experience, has retired? Will it be Justice Stephen Breyer or perhaps Justice Ruth Bader Ginsburg?

Do we know what the final caseload looks like yet?

MARCIA COYLE: No. What we do know so far is that the justices have agreed to hear arguments in 38 cases. That is not the final number. The justices look over petitions for review every week of the term and add cases to the argument docket until it is filled, usually by mid-January.

Without knowing the full extent of the casehold, are you starting to see any major themes emerging?

MARCIA COYLE: Preemption is a word we will be hearing a lot about in the new term. It sounds technical but it has a real world impact for injured people trying to have their day in court.

For example?

MARCIA COYLE: The National Childhood Vaccine Injury Act protects vaccine manufacturers from liability for certain injuries caused by their vaccines. It provides compensation from the government. Wyeth Laboratories successfully argued in lower courts that the act preempted–blocked–the claim of parents of a child who became disabled after a series of DPT shots. The parents are asking the Supreme Court to find that the act doesn’t apply when the victim claims that the drug’s design created an avoidable and unnecessary risk to patients.

Another preemption case stems from a 2004 fatal collision involving a Mazda minivan. The passenger in the second row seat was wearing a lap-only seatbelt. She was killed when the force of the collision catapulted her over the belt. Her family sued Mazda, claiming the vehicle was defective because it lacked a lap/shoulder belt for the aisle seat. But lower courts said the lawsuit was preempted by federal law, which at the time, allowed, but did not require the lap/shoulder belt. Now the justices will decide whether the family can go forward with its injury claim.

The justices also return to the always thorny issue of church-state interaction in a case from Arizona. They will decide whether a state program giving parents tax credits for tuition at private schools violates the Constitution’s separation of church and state because the credits are being used primarily to pay for religious school tuition.

Will we continue to see a large number of employment disputes?

MARCIA COYLE: Employment disputes are frequently on the high court’s docket and this term is no exception. The justices are asked if an employer violates a federal job bias law by firing the fiancée of the employee who complained about discrimination. Who can sue–the employee who was fired or the one who complained?

And consider this question: can an employer be liable for discrimination in the workplace by a supervisor who does not make the actual job decision but who influences the one who does? This question comes up in the case of an Army reservist who worked as a civilian hospital technician and whose immediate supervisor was extremely hostile towards him because of the time he took off to fulfill his Army Reserve duties. He claims he was fired by the hospital in violation of the Uniformed Services Employment and Reemployment Rights Act.

You mentioned the employee background check case earlier, which is expected to get a lot of attention. Are there other discrimination cases on the court’s agenda?

MARCIA COYLE: Another discrimination challenge, but outside the employment world, raises one of those questions that most people would think should have been decided a long time ago. Children born outside of the United States who have one U.S. citizen-parent can obtain citizenship if the citizen parent lived in the United States for a certain length of time before the child was born. Ruben Flores-Villar is challenging the law, since amended, that required fathers to have lived in the United States before the child was born for a total of 10 years (currently five years). Mothers were required to have lived in the United States for a year before their child was born. Flores-Villar argues the law violates the equal protection clause.

The PBS NewsHour will have ongoing, in-depth coverage both on-air and online of the upcoming Supreme Court term. Stay tuned.