- The Washington Times - Thursday, September 30, 2010

The Supreme Court’s upcoming term will include the most emotionally charged freedom-of-speech case in recent history along with the usual assortment of high-profile challenges focusing on hot-button issues such as immigration and prosecutorial misconduct.

But the term, which begins Monday, also is notable for what it often will not include, namely new Justice Elena Kagan.

Justice Kagan, who won confirmation this summer to replace retired Justice John Paul Stevens, has said she must step aside for about half the roughly 50 cases the court has so far agreed to hear this term. It is not uncommon for justices to have to step aside when the court hears cases with which they had some previous involvement, but Justice Kagan’s unusually high number is a result of her previous job as solicitor general.

It is unclear how many more, if any, recusals Justice Kagan will have this term, or how many she will have in subsequent terms, though the number is likely to be lower in ensuing years. With such a large number of recusals, some cases could end in 4-4 ties, which means they would retain a lower court’s ruling.

Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, tried to avoid that scenario by proposing a bill this week that would allow retired Justices Stevens, Sandra Day O’Connor and David H. Souter to fill in for such cases.

One of this term’s high-profile cases is a challenge to an Arizona immigration law enacted in 2007. Others involve prosecutorial misconduct in Louisiana, and how far protesters can go in demonstrating at funerals.

In the Arizona case, Chamber of Commerce of the United States v. Whiting, a group of seemingly strange bedfellows — business owners, unions and civil libertarians — have challenged a state law requiring employers to access a federal database to ensure job applicants are eligible to work in the U.S. The law also imposes sanctions that could force employers out of business.

At issue is whether federal law “pre-empts” the Arizona law through the Constitution’s Supremacy Clause, which says state law can’t contradict federal law. Specifically, those opposing the Arizona law say it contradicts Congress’ intent that the use of the E-Verify database is strictly voluntary, not mandatory.

The critics similarly argue that the Arizona law goes too far in its use of sanctions, as only the federal government can impose such penalties.

The state argues that while Congress made participation in E-Verify voluntary, it did not preclude states from passing laws making it mandatory. The state further argues that its sanctions are permissible because they are imposed through “licensing laws,” which Congress has said don’t conflict with federal law.

The case will be closely watched because state legislatures nationwide have passed hundreds of immigration laws during the past five years, according to the National Conference of State Legislatures.

The passage of such bills is frequently acrimonious, as illustrated by a portion of the Arizona law being challenged that states: “Because of Congress’ failure to act, states like Arizona have no choice but to take strong action to discourage the further flow of illegal immigration through our borders.”

The issue of states passing immigration laws became even more pronounced this year with the passage of an even more controversial Arizona law giving state law enforcement officers broad authority in enforcing immigration law. The federal government has filed a lawsuit against Arizona saying the new law violates the Supremacy Clause.

Many had hoped the Arizona E-Verify case would provide insight into how the high court will handle other state immigration laws. But the case may not do that.

“The court has been quite clear that it looks at pre-emption within the four corners of the particular case being challenged,” said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute.

While the notion that the E-Verify case will be a precursor to the court’s handling of similar cases may go too far, Mr. Shapiro said, oral arguments may give hints to the proclivities of individual justices. But even that will be limited somewhat by the fact that Justice Kagan will not be participating.

“This case will not be as big a bellwether because of her recusal,” said Jordan Sekulow, a lawyer at the conservative American Center for Law and Justice.

Oral arguments in the case are scheduled for Dec. 8.

The term’s most controversial case, in which Justice Kagan will participate, is scheduled to be heard Wednesday and involves the father of a Marine killed in Iraq who has sued Fred Phelps, the leader of the anti-gay Westboro Baptist Church, for picketing with offensive signs at the Marine’s funeral.

The case, Snyder v. Phelps, will examine whether the protest is protected by the First Amendment or amounts to an invasion of privacy. The court also may address whether the protest violated the First Amendment’s freedom-of-religion protections of those gathered at the funeral.

The case was brought by Albert Snyder, whose son Marine Lance Cpl. Matthew Snyder was killed in 2006. Mr. Phelps and several followers picketed outside Cpl. Snyders’ funeral at a Roman Catholic church in Maryland. They held signs saying “Thank God for Dead Soldiers” and “You’re Going to Hell,” as well as vulgar signs attacking gays and the Catholic Church.

Consisting of no more than about 100 people in Kansas, the Westboro Baptist Church has made a habit of protesting at the funerals of soldiers. The group says it does so because of the nation’s permissive attitude toward homosexuality; it also says it is anti-Catholic.

The protest had a detrimental effect on the Marine’s father, according to his lawyers, who said in court papers that he will “never have another opportunity to bury his son, and he will associate memories of his son with the Phelpses’ hateful epithets and conduct for the rest of his life.”

Mr. Snyder sued Mr. Phelps for invasion of privacy and intentional emotional distress and won a $5 million verdict. But the 4th U.S. Circuit Court of Appeals set aside the verdict, saying the protest included “hyperbolic” speech protected by the First Amendment.

One analyst says it will be difficult to predict how the high court will rule.

“This could actually be the rare case where the traditional wings on the court splinter and we’ll learn a lot more about the differences between the justices on the conservative wing and differences between the justices on the liberal wing, instead of the differences between the conservative and liberal justices,” said Mark Graber, constitutional law scholar and associate dean at the University of Maryland School of Law.

Mr. Graber said Mr. Phelps is neither extreme on the left or right: “If ever there was a plaintiff that most people conservative or liberal would want to shut up it’s Phelps.”

Scheduled for a hearing that same day is another case in which Justice Kagan will participate and involves the stunning story of a Louisiana man who was only a month away from execution when it was discovered that prosecutors withheld evidence that ultimately led to his exoneration.

The case, Connick v. Thompson, is, at its root, about how corrupt prosecutors should be held accountable, said John Hollway, a lawyer who wrote a book about it.

“There needs to be some way for us as a community to say, ‘No, this is wrong and we’re not going to allow it to happen,’” said Mr. Hollway.

In this particular instance, the New Orleans district attorney’s office was held accountable through a $14 million judgment awarded to John Thompson, who spent 18 years in prison. The judgment was awarded on the basis that former District Attorney Harry F. Connick Sr. was “deliberately indifferent” to whether his prosecutors received proper training regarding what evidence they were required to provide to the defense.

“The meager guidance he claims to have provided his prosecutors was objectively wrong — and, as his former assistants admitted, would not have required the production of the critical evidence that ultimately exonerated Thompson,” attorneys for Mr. Thompson wrote in a brief.

The case began in 1984 when Mr. Thompson was arrested in the shooting death of a New Orleans businessman. He was charged with trying to rob three siblings near the New Orleans Superdome; the siblings came forward and identified Mr. Thompson as their attacker after seeing media reports about his arrest.

According to court records, prosecutors sought to gain a tactical advantage by prosecuting the robbery first. It proved a successful strategy as Mr. Thompson was convicted, preventing him from testifying at his murder trial three weeks later because the prosecution could have used his testimony to introduce evidence of the robbery conviction, a detail that may have helped turn the jury against him.

Without his testimony, the jury convicted Mr. Thompson of murder.

Court records show that prosecutors argued that because Mr. Thompson was already sentenced to nearly 50 years in prison for the robbery conviction, the only way to truly punish him for the murder would be to impose the death penalty.

The jury did so, unaware that prosecutors were withholding evidence that proved Mr. Thompson could not have committed the robbery. The blood evidence found on the pant leg of one of the robbery victims came from the perpetrator and was of a different blood type than Mr. Thompson’s. That evidence remained a secret until Mr. Thompson’s attorneys discovered it mere weeks before his 1999 execution date.

It was later revealed that one of the prosecutors, while dying of cancer, had told another prosecutor about the evidence that would have exonerated Mr. Thompson, but the second prosecutor told no one.

The revelation of the new blood evidence resulted in Mr. Thompson’s robbery conviction being thrown out and led to him receiving a new trial on the murder charge. In 2003, after a trial at which he testified, Mr. Thompson was acquitted. He subsequently sued and won the $14 million judgment.

Attorneys for Mr. Connick, who served as district attorney for nearly 30 years and is the father of entertainer Harry F. Connick Jr., argued that all Mr. Thompson proved is a single instance of prosecutors failing to turn over evidence and not a pattern. They also said the jury found the district attorney’s office liable, not for its own wrongdoing, but for wrongdoing of an employee.

• Ben Conery can be reached at bconery@washingtontimes.com.

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