A Changed Supreme Court Faces Key Cases In 2009-10 Session The Supreme Court is set to take up issues of campaign finance; gun rights; animal cruelty; and separation of church and state. The court must also adjust to the addition of Justice Sonia Sotomayor, taking over the seat occupied for 19 years by David Souter.
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A Changed Court Faces Key Decisions In New Term

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A Changed Court Faces Key Decisions In New Term


A Changed Court Faces Key Decisions In New Term

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When the Supreme Court officially opens a new term today, the issues before the court will include campaign financing, animal cruelty, gun rights, separation of church and state, life terms for juveniles and more. It's not only a new term, but also a newly composed court with Justice Sonia Sotomayor now in the seat that retired Justice David Souter occupied for 19 years. NPR Legal Affairs Correspondent Nina Totenberg has more.

NINA TOTENBERG: For 11 years, between 1994 and 2005, the composition of the Supreme Court remained unchanged. And now, within the space of four years, there have been three changes.

It may be that President Bush's most long-lasting legacy will be his appointment of Chief Justice John Roberts and Justice Samuel Alito. They've tipped the court in a dramatically more conservative direction.

As for the newest justice, Obama-appointee Sonia Sotomayor, she is not expected to make as much of a change in the overall ideological makeup of the court because, to oversimplify, she's a moderate liberal replacing a moderate liberal on the court.

The other justices, all but Alito, have experienced a transition with a new justice, and they talk about it in distinct, even intimate terms. Chief Justice Roberts, while he was awaiting the appointment of the new justice this spring, joked that it was like waiting for the arrival of a wife in an arranged marriage. In a recent C-SPAN interview, he called the change unsettling.

Justice JOHN ROBERTS (Chief Justice, U.S. Supreme Court): You quickly get to view the court as composed of these members, and it becomes kind of hard to think of it as involving anyone else. I suspect it's the way people look at their families. You know, this is the family. How could it, you know, be different? But you do get new arrivals in both of those situations. It's a tremendous sense of loss.

TOTENBERG: Justice Clarence Thomas says a new justice takes the court out of its comfort zone, especially when there's been a long period without a vacancy, as there was between '94 and 2005.

Justice CLARENCE THOMAS (U.S. Supreme Court): We had a long run together. And you get comfortable with that, and then it changes. And now it's changing again. So the institution, the nine's different. Your reaction's different. You get to learn each other. You have to start all over. The chemistry's different.

Justice ANTHONY KENNEDY (U.S. Supreme Court): It's a new court.

TOTENBERG: Justice Anthony Kennedy, also speaking on C-SPAN, compares the appointment of a new justice to the changes on a jury when one member becomes ill and has to be replaced. It's a new dynamic, he observes.

Justice KENNEDY: It's stressful for us, because we so admire our colleagues. We wonder, oh, will it ever be the same? But I have great admiration for the system. It gives us the opportunity, again, to look at ourselves to make sure that we're doing it the right way.

TOTENBERG: The new court has already heard its first argument, at a specially scheduled session in early September.

The subject was campaign finance and whether the court should uproot more than a century's worth of legislation, laws upheld either explicitly or implicitly in the past by the court.

The case was first argued in March on a relatively minor point, but the justices ordered it reargued last month, with the focus this time on whether the long-accepted ban on corporate and union spending in elections violates the First Amendment guarantee of free speech.

Another major First Amendment case is to be argued this week. It tests a federal law banning the sale and distribution of photos and videos depicting animal cruelty. A federal appeals court threw out the conviction of a Virginia man who sold dog fighting videos on the Internet. The defendant did not make the videos himself — most were made in Japan, where dog fighting is legal.

Now the federal government is asking the Supreme Court to declare that videos depicting animal cruelty are not protected by the Constitution's guarantee of free speech - in short, to carve out an exception to the First Amendment, much like the one that the court has carved out for depictions of child pornography.

The publishing industry, media organizations and the National Rifle Association maintain that this rationale threatens vast swaths of free expression, that it, for example, would allow the prosecution of everything from hunting and fishing videos to Hollywood movies.

A different aspect of the First Amendment - the separation of church and state - is at issue in a case involving a five-foot cross erected on federally owned land in California. When a federal court ruled the cross unconstitutional, Congress gave the land to the Veterans of Foreign Wars.

The lower courts then ruled the land grant was an illegal end-run. And the government appealed, contending that there is no live lawsuit here, that the guy who challenged the land give-away cannot demonstrate any harm and therefore can't get into court. If the government wins, it will likely make it considerably more difficult to challenge other religious displays on public property.

The court is also taking on the issue of gun rights again. Last year, the court declared for the first time that the constitutional right to bear arms is an individual right that puts some limits on federal laws and regulations. Specifically, the court struck down a total ban on handguns in the District of Columbia.

This term, in a case involving a Chicago gun ban, the court examines whether the same limits apply to state and local laws. In the criminal law field, two cases from Florida test whether it is unconstitutionally cruel and unusual punishment to sentence a minor to life in prison without parole for crimes that do not involve a death.

One case involves a 13-year-old sentenced to life in prison without parole for sexual battery. The other case involves a 17-year-old sentenced to life after violating his probation for an earlier armed robbery.

As for white-collar criminal law, the court will examine the federal law that allows business executives to be prosecuted for depriving shareholders of their honest services, and similarly allows prosecutors to bring charges against public officials for depriving citizens of the public officials' honest services.

At least one justice, Antonin Scalia, has suggested that the expansive phrase honest services invites abuse by headline-grabbing prosecutors, because it's so broad that no citizen can know what conduct is illegal.

There are lots of business cases before the court. One tests whether a Wall Street formula for buying and selling commodities can be patented. Another tests whether the people who run mutual funds can charge higher fees to individual clients than to institutional investors like pension funds. And there's a case testing whether the law enacted in the aftermath of the Enron scandal to monitor public company accounting is constitutional.

Then, too, there's a big property rights case that pits state environmental protection agencies seeking to rebuild eroding beaches against private homeowners on the shoreline.

In this case, the Florida property owner claims that the state cannot, in essence, create a strip of beach at the water's edge and then say it no longer belongs to the homeowner whose property previously went right to the water.

Finally, waiting in the wings are some big questions. Most immediately, the Obama administration is seeking to block a lower court decision requiring the release of photos of detainee abuse in the Bush administration.

Nina Totenberg, NPR News, Washington.

INSKEEP: And you can go online at npr.org and learn more about the upcoming session and the cases before the court.

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INSKEEP: This is NPR News.

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