Supreme Court Preview: Kagan Debuts, but Kennedy Is Still Center Stage

When the United States Supreme Court ended the 2010 spring term in late June, the justices were mired in sadness. Martin Ginsburg, beloved husband of Justice Ruth Bader Ginsburg and a popular and powerful figure in Washington apart from his famous spouse, had just died. And Justice John Paul Stevens, the genteel veteran of 35 spring terms, had just retired. After a particularly rancorous term, which included a landmark campaign finance ruling and a concomitant public rebuke from the president, the justices were clearly ready for their summer vacation.

But one of the many permanent things about the Supreme Court is its ability to transform itself anew each time a new justice arrives on the scene. "With every new member, it's a new court," Justice Stephen Breyer likes to say, quoting one of his predecessors, the late Justice Byron "Whizzer" White. Tanned, rested and ready, how will the court change now that Justice Elena Kagan is reading the briefs and asking the questions? We'll start to get some answers to that question in just a few days, on the first Monday in October, when the court opens its fall term with oral arguments.

The upcoming judging season looks generally like all the others that preceded it. Even though every Supreme Court decision affects millions, the vast majority of the cases on the docket so far -- many more will be added over the next few months -- are of little interest to most people. For example, you don't really care about summary judgment standards, do you? Chances are you won't hear much about the scope of the Federal Arbitration Act as it relates to the efforts of states to help consumers. And I'm guessing you've never even heard of the Religious Land Use and Institutionalized Persons Act, the scope of which the justices will debate starting with oral argument on Nov. 2.

But then there are such cases as Snyder v. Phelps, a contest involving particularly odious protests at military funerals, which rivet the nation. In Snyder, heard the very first week of the term, the justices will determine whether the First Amendment protects even the hateful speech of the Rev. Fred Phelps and his minions at the Kansas-based Westboro Baptist Church. They have created headlines and heartbreak at funerals through the use of vicious signage and epithets. Are the family members at a military funeral a "captive audience" who warrant some protection from such protests? You can just picture the video of some of those protests playing over and over again on the cable channels now, can't you?

The justices also will be in the news in December -- a month or so after the midterm elections, when they hear argument in an immigration case arising out of Arizona. No, it's not the challenge to S.B. 1070, the controversial measure passed earlier this year. It's a challenge to an earlier state law that imposes sanctions upon employers who hire unauthorized aliens. In Chamber of Commerce v. Whiting, the court will determine whether federal immigration law and policy trumps conflicting state law. No matter what the justices rule, the decision in Whiting will be perceived as a preview of the larger battle between Arizona and the federal government over immigration rules.

Another case that surely will garner a great deal of attention stems from California's historically atrocious (and atrociously expensive) penal system. In Schwarzenegger v. Plata, the court will decide whether a federal trial judge's order to reduce California's prison population violates the Prison Litigation Reform Act. The judge took the extraordinary step following a lengthy trial in which he determined that the overcrowding was depriving inmates of their constitutional rights. Speaking of prisoners, the justices also will hear and decide an important case involving the procedures inmates must use when they ask for a DNA test.

As is often the case, the justices will hear plenty about the intersection of employee and employer rights. Does the government violate the constitutional rights of federal employees when it asks them whether they have recently had counseling or treatment for drug use? NASA v. Nelson will help answer that question. In Kasten v. Saint-Gobain, the court will determine whether a complaint under the Fair Labor Standards Act must be in writing to protect an employee from retaliation. And in Staub v. Proctor Hospital, the justices will try to refine employer liability when a manager, who is not a decision-maker, allegedly discriminates against employees.

Are you a parent? There's something for you on the court's docket as well. In Schwarzenegger v. EMA, the court has been asked to determine whether a state can restrict sales of violent video games to minors under the First Amendment. There's a grim case under the National Childhood Vaccine Injury Act. There's a case that focuses upon citizenship for children born overseas who have one parent who is an American citizen -- and whether moms and dads should be given different status in such instances. And if you are lucky enough to have a child who is a doctor, you'll surely want to tune in to Mayo Foundation v. U.S., a case in which the tax status of medical students will be evaluated by the Justices.

The court that will hear these cases will indeed be different from the one that left for summer break three months ago. For the first time in the nation's history, there will be three women on the court . It is younger. It no longer contains a World War II veteran or a Presbyterian. And Justice Kagan is likely to be more conservative in some areas -- like law enforcement and corporate law -- than her predecessor was. Other than that, the song will mostly remain the same. It's a conservative court, the most conservative since the 1930s, and its most controversial and contentious cases will still be decided not by Chief Justice John Roberts but by Justice Anthony Kennedy, the 74-year-old Reagan appointee who holds whatever exists of the court's ideological "center."