A divided high court gets down to business

What happened

The U.S. Supreme Court opened its new term this week, tackling a docket loaded with controversial cases likely to expose deep divisions between the court’s liberal and conservative wings. The session marked the debut of Justice Elena Kagan, who replaces retiring liberal Justice John Paul Stevens. In a historical first, three of the court’s nine justices are women, as Kagan joins Justices Ruth Bader Ginsburg and Sonia Sotomayor. Together with Justice Stephen Breyer, they make up the court’s liberal bloc, with Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas making up the conservative wing. Justice Anthony Kennedy is the court’s swing vote, and the two factions will craft their opinions in closely contested cases with an eye toward gaining his support.

In this term, the court has agreed to take up 52 cases thus far. Among them is a free-speech case pitting the grieving families of soldiers killed in action against a fundamentalist Kansas church that stages loud protests at military funerals, saying that these deaths are God’s punishment for America’s acceptance of “the sin of homosexuality.” Another high-profile case will test whether federal immigration laws trump state efforts to crack down on illegal immigration.

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What the editorials said

You can tell a lot about a Supreme Court’s “interests and biases” from the cases it agrees to hear, said The New York Times. The liberal Warren court, for example, favored cases brought by “downtrodden people.” The Roberts court, by contrast, “has championed corporations,” which are involved in about 40 percent of the cases the court has agreed to hear this term. With last January’s Citizens United opinion, which gave corporations the right to spend unlimited amounts of money on political advocacy, the court’s conservatives have already shown their willingness to “make sweeping changes in constitutional law.”

We will also finally learn what Justice Kagan thinks, said The Washington Times. She spent her legal career carefully avoiding laying down a record that might come up during confirmation hearings. She did, however, indicate as U.S. solicitor general a disturbing skepticism toward free speech, arguing that it must always be weighed against “its societal costs.’’ That’s a dangerous viewpoint, and “the risk with Justice Kagan is that she will resolve close calls in favor of government rather than freedom.’’

What the commentators said

At her confirmation hearings, Kagan came across as “a moderate liberal,” said Ken Klukowski in FoxNews.com. But her pedigree from academia and both the Clinton and Obama administrations “is that of a very liberal legal thinker.” At only 50 years old, Kagan could be a thorn in the side of the court’s conservatives for decades to come. But Kagan “may make her mark in her first U.S. Supreme Court term less by her presence than by her absence,” said Greg Stohr in Bloomberg BusinessWeek. Because of her work as solicitor general in the Obama administration, she has recused herself from about half of the cases on the docket. That could result in a lot of 4–4 ties, which would let the last lower-court ruling stand.

For all the mystery surrounding Kagan’s views, “the larger question” is how aggressive Chief Justice Roberts will be in seeking to overturn long-standing precedents, said Linda Greenhouse in The New York Times. Roberts has already mustered narrow majorities to grant free-speech rights to corporations, weaken protections for defendants, and strike down school integration efforts. Will this latest term continue the Roberts court’s “rightward and almost entirely 5–4 march”?

Count on it, said Erwin Chemerinsky in the Los Angeles Times. “This is the most conservative court since the mid-1930s,” and it has already weakened gun-control regulations and granted states new powers to regulate abortions. In the near future, this court is likely to rule on the constitutionality of the federal health-care bill, marriage equality for gays and lesbians, and Arizona’s punitive immigration law. “It is a court for conservatives to rejoice over and liberals to bemoan. And it is likely to stay that way for years to come.”