When the U.S. Supreme Court convenes on the first Monday in October with its newest member, Justice Elena Kagan, only one thing is certain: no one can predict the direction of the newly constituted court.
That was the shared opinion of Law Center Professor Peter Linzer and Allyson N. Ho, an appellate litigator and partner in the firm of Morgan Lewis, during a Supreme Court preview sponsored by The Federalist Society.
“We are in the midst of extraordinary change on the court,” said Ho, who clerked for former Supreme Court Justice Sandra Day O’Connor and served in senior positions in the White House and Justice Department during the George W. Bush administration. While Justice Anthony Kennedy will remain a swing vote on the court, Ho noted how he will assume the senior justice duties of retired Justice John Paul Stevens. Kennedy thus gains the role of assigning authorship of some major opinions, giving him an oft overlooked power that can be used to subtly shape rulings. A big question, she added, is whether Kagan will “cross over” on some cases as her predecessor Stevens did.
Linzer predicted Kagan will help smooth over a “very fragmented” court, recalling the way she calmed a divided faculty as dean of the Harvard Law School. “But it’s hard to see which way the court will go,” he said. “The Supreme Court doesn’t like being taken for granted; they like their autonomy.”
The two constitutional law experts focused on two cases that will be argued during the first week of the new session: Snyder v. Phelps and Connick v. Thompson.
The former involves the First Amendment rights of a Baptist pastor, Fred W. Phelps, Sr., who laces his ministry with railings against homosexuality. (Linzer described Phelps as “not a nice man.) Phelps and his followers gained worldwide attention when they demonstrated at the funeral of a soldier killed in Iraq and carried placards reading “God Hates Fags” and “Thank God for Dead Soldiers.”
The soldier’s father, Albert Snyder, did not see the demonstration until it was shown on television after the funeral. But after he sued on grounds of defamation, invasion of privacy and infliction of emotional distress among others, the case worked its way up to the Supreme Court. “I think this is an easy case,” Linzer said, predicting that it could be a six-vote majority. “The question is, where is the fifth vote coming from?” The professor cited four reasons why he foresees a freedom of speech slam dunk: Phelps and his followers were kept well away from the funeral by police; Snyder didn’t actually see the demonstration; the protesters didn’t make any false statements in the signs they carried; and they didn’t defame anyone “except God, and he didn’t show up.” Linzer likened the case to Falwell v. Hustler which upheld publication of a satiric cartoon. “The court ruled that bad taste is not enough,” Linzer said. In summing up his assessment, he referenced Justice Kennedy’s concurring opinion in 1989 that upheld the right to burn an American flag. Linzer paraphrased the ruling: “Because we love the Constitution, we must protect those who hate it.” As an aside, Ho mentioned that Justice Stevens was the last military veteran to serve on the high court, and his retirement could have an effect on some future SCOTUS rulings.
In the second case, Connick v. Thompson, both Ho and Linzer wondered why the Supreme Court granted cert in the first place. The case centers on prosecutorial immunity, and the justices will consider whether a district attorney’s office can be held liable because a prosecutor withheld evidence that might have saved John Thompson from a death sentence. A jury found in Thompson’s favor, awarding him $14 million, but the verdict was overturned on appeal. An evenly split en banc appeal vacated that order with no opinion, leaving the jury verdict intact. Since there was no error, no lower court opinion, and no issue of national importance, Linzer and Ho questioned why the Supreme Court took up the case. “The only reason I can see is that there are five judges who don’t want the verdict upheld,” Linzer said, noting that the court has been historically hesitant to expand rights to sue municipalities. Ho concurred in the opinion. “If there isn’t liability here, it would be difficult to imagine a case where there would be,” Ho said.