USC Gould School of Law and the student chapters of the Federalist Society and American Constitution Society presented the third annual U.S. Supreme Court Preview, featuring three of the nation’s top legal scholars – Kathleen Sullivan of Stanford University, John Eastman of Chapman University and Rebecca Brown of USC.
Moderated by Elizabeth Garrett, a USC Law professor who clerked for Justice Thurgood Marshall, the panel discussed a handful of the most important cases the Supreme Court will hear during the 2010 Term.
The Sept. 20 event, held at USC’s University Club, drew an audience of more than 250 USC Law alumni, law and undergraduate students, faculty, staff and local attorneys.
The panelists looked at the upcoming U.S. Supreme Court Term, which begins Oct. 4, the dynamics of the Court, the Court’s future and the addition of Justice Sonia Sotomayor last year, and Elena Kagan this year.“It’s the sixth Term for Chief Justice Roberts and I think in many ways it can been seen as truly his court,” Garrett said. “Last year he was in the majority 90 percent of the time. It’s the first time in 34 years Justice Stevens will not be sitting on the bench. He’s someone who has gone from being – at the time I clerked –an idiosyncratic moderate to a leader of the liberal wing. So, it’ll be interesting to see what happens in his absence. We now have a new justice this year, Elena Kagan, and finally for the first time we have three justices on the Supreme Court who are women.
Something to look out for this year is the perennial question: What will Justice Kennedy do in any particular case?”The panel discussed a variety of cases before the Court this year, including Schwarzenegger v. Entertainment Merchants Association, which looks at whether California can ban the sale or rental of violent video games to children; Snyder v. Phelps, a free speech case involving an anti-gay demonstration at a soldier’s funeral; and Flores-Villar v. United States, a gender case.Eastman, who clerked for Justice Clarence Thomas and is former dean of Chapman University Law School, said Snyder v. Phelps could change how the Court views free speech cases.The case centers around whether the father of a Marine killed in Iraq can sue a fringe church for emotional distress. Church members protested at his son’s funeral, and linked U.S. military casualties to American tolerance of homosexuality.
“This case is putting two fairly significant constitutional ideas at odds with each other – the right of unfettered speech and the right to be left alone at the funeral for your son or daughter,” said Eastman. “I’m predicting the Court will come up with something like this: that although the protest was on a public street, it was a public street that was being used for a funeral procession. I think the Court will find some way to reconcile the speech interest as well as the privacy interest at stake right now… The lack of civility that will flow from an unfettered free speech will just get worse and worse as we go on.”Brown said that the case could have implications for hate speech, something the Court has protected in the past.
“The harm here was, not that the protestors were making noise or showed up uninvited,” said Brown, who clerked for Thurgood Marshall and is the Newton Professor of Constitutional Law at USC.“The problem is what they said – that the Marine was going to hell and other terrible remarks that caused pain to the family.. To me, what’s interesting is there’s a very strong intuitive appeal here for regulating speech based on its content: the thing that was said is harmful to someone else. That sounds a lot like hate speech. The Court has been reluctant to allow any regulation of hate speech because for the most part we have an absolute right to free speech. It’ll be fascinating to see what the Court does.”
Another case discussed was Schwarzenegger v. Entertainment Merchants Association, which looks at whether California can ban the sale or rental of violent video games to children. The 9th U.S. Circuit Court of Appeals in Sacramento ruled that the law violated minors’ rights under the First and 14th Amendments to the Constitution.“There’s an old view that certain kinds of speech are less protected than others,” said Sullivan, a Stanford Law professor, who served as the school’s first woman dean from 1999 to 2004. “But there’s never been a kid exception to the First Amendment.”
The panel looked back on cases from last Term including Citizens United, a campaign finance case, and McDonald v. City of Chicago, a gun case.“If you want to pick a key theme for what’s happening at the Supreme Court right now it’s that the political balance of judicial activism and judicial restraint has shifted political sides,” said Sullivan. “You now have judicial activism coming from the so-called conservative side,” as seen in the Chicago gun case. “So sometimes you can’t be sure of who is reading from whose playbook.”Eastman disagreed, saying, “I don’t think it’s right to define activism as striking down an act of a majority. That is the duty of an independent judiciary.
Activism is striking down a law without a strong textual basis in the Constitution.”Although not yet before the Supreme Court, Garrett asked the panel to discuss the challenge to Prop. 8, the ban on same-sex marriage in California, which is now in the federal courts.The panel agreed that the issue of same-sex marriage ultimately will be decided by the Supreme Court, but the question is when.
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