The Supreme Court has accepted 38 cases so far for next term, about half of the usual number of cases it will decide.  Some of those won’t make the cut. Last year, for example, much of the pre-term buzz was centered on Briscoe v. Virginia, which was to further explore the ramifications of the Court’s decision at the end of the 2008 term in Melendez-Diaz v. Massachusetts.  (Buzz discussed here.)  The upshot?  After oral argument, the Court dismissed the case as improvidently granted.

With that caveat, let’s take a look at what’s scheduled.

As usual, several cases pertain to the “Great Writ” of habeas corpus.  Its availability to review state court decisions was substantially limited in 1976 when the Supreme Court prohibited virtually all substantive review of search-and-seizure claims in habeas, and it was virtually gutted by the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, which provided for an exceedingly deferential standard of review:  a Federal court could grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

Nonetheless, a trio of habeas cases involving ineffective assistance of counsel claims made their way to the High Court this year.  Harrison v. Richter (links are to ScotusWiki, which provides links to all pertinent documents on the case) presents the issue of whether counsel was ineffective for failing to procure expert forensic testimony (the 9th Circuit held that he was), and also raises the issue of what deference the Federal courts must make when the state court doesn’t address the constitutional claim, or does it in only summary fashion.  Premo v. Moore, also a 9th Circuit decision, granted relief on ineffective assistance grounds for counsel’s failure to move to suppress a confession.  The unusual issue here is that Moore pled guilty, the concurring judge in Premo held that the defendant could demonstrate the necessary prejudice for an IAC claim by showing that he would have been in a better plea-bargaining position had counsel filed the motion.  The last is Cullen v. Pinholser, yet another 9th Circuit decision, which presents the question of whether relief can be granted based upon factual matters that were never submitted to the state courts, but presented for the first time on habeas.  Unaffectionately derided as the “9th Circus” by conservatives, and renowned for its reversal rate by the Supreme Court, don’t be surprised if the 9th goes 0 for 3 in this round.

One major non-habeas criminal case:  Michigan v. Bryant poses the question of whether a wounded crime victim’s statements to police concerning the perpetrator and circumstances of his shooting should be admitted at trial under the theory that they are “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” and thus not testimonial under Crawford v. Washington and Davis v. Washington.  This is arguably the biggest post-Crawford case yet, because it offers the Court the opportunity to do something it hasn’t yet done:  define exactly what a “testimonial statement” is. 

A civil case with heavy criminal overtones is Connick v. Thompson. Thompson was charged with two crimes in 1984, an armed robbery and a capital murder.  The prosecutors proceeded with the robbery trial first, hoping to gain a conviction and thus effectively preclude Thompson from testifying in his murder trial.  It worked:  he was found guilty of the robbery, and didn’t testify at the murder trial, where he was convicted and sentenced to death. 

His attorneys subsequently discovered that state prosecutors hadn’t turned over blood evidence they had showing that Thompson hadn’t committed the robbery.  That, and discovery of more than a dozen other pieces of exculpatory evidence which hadn’t been disclosed, led to the granting of new trial, and the jury spent just 35 minutes in deliberation before acquitting Thompson, who’d spent 18 years on death row.  Thompson sued, and another jury hit up the prosecutors office for a whopping $14 million.  The Supreme Court accepted certiorari on the question of whether a single Brady violation can justify such an award, but don’t be surprised if this gets tossed as improvidently granted; there’s good reason to believe that the facts will show a good bit more than a single violation.

In the civil arena, a couple of notable First Amendment cases.  The first concerns Fred Phelps, the evil little fuck who founded the Westboro Baptist Church, which makes it a point to show up at military funerals with signs claiming that the deceased soldier is a “fag,” and his death the result of God’s hatred of homosexuals.  The family of Matthew Snyder, one of the objects of Phelp’s execrable displays, sued him for intentional infliction of emotional distress and was awarded $5 million.  The 4th Circuit reversed the award on free speech grounds and, for good measure, ordered Snyder’s family to pay $16,000 for the church’s legal fees.  Snyder v. Phelps poses a number of questions, such as the balancing of the freedom of speech against freedom of religion and assembly, and “whether an individual attending a family member’s funeral is a ‘captive audience’ entitled to state protection from unwanted communciation.”

A less troubling case is Schwarzenegger v. Entertainment Merchants Association, which presents the question of the constitutionality of a California law restricting the sale of violent video games to minors.  The mystery here is why the Court took the case in the first place:  the usual basis for doing so, to resolve a split in the lower courts, isn’t present, because the lower courts have uniformly rejected such laws.  It may be that the Court wants to take another look at how far the First Amendment goes in protecting the rights of minors, but coming after last term, when the justices practically laughed the Solicitor General out of the courtroom for her defense of the Congressional act prohibiting dogfighting videos, it’s hard to see exactly where this is going.

Anyway, the early handicapping has Michigan v. Bryant being the most significant case of the year.  Stay tuned.