A lower court has ruled the photos are subject to the Freedom of Information Act, and should be released.
Foster was found dead in Fort Marcy Park in McLean, Va., his pistol in his right hand. Conspiracy theorists maintained that Foster had been killed on the orders of President Bill Clinton, or on his behalf. Investigations by the U.S. Park Police, the FBI and House and Senate committees all concluded that Foster committed suicide.
An investigation by special counsel Robert Fiske Jr. and a separate investigation by his successor, independent counsel Kenneth Starr, concluded the same thing. Starr said in a 58-page report that the "overwhelming weight of the evidence compels the conclusion that Vincent Foster committed suicide."
Accuracy in Media, a public interest group that maintained Foster's suicide note was a forgery, filed a request with Park Police seeking autopsy photographs and photos of Foster's body at Fort Marcy Park.
The government refused, and a federal appeals court in Washington agreed, saying they were exempted from the mandatory disclosure provisions of FOIA.
AIM said it wanted the photos to uncover "government foul play," the appeals court said, but unless the group had some compelling evidence it was not enough to justify an invasion of privacy.
Attorney Allan J. Favish, who represented AIM in the case, then filed his own FOIA request with the independent counsel's office to obtain the photos.
When the office refused, Favish filed suit in federal court in Los Angeles.
Though a federal judge again said that there was no evidence justifying the invasion of privacy, a divided appeals court panel reversed, saying evidence was not necessary.
When the case was sent back to trial court, the judge, under the appeals court guidance, ordered the release of five of the 10 photographs of Foster's body, including one that had been previously published in Time magazine.
The government, joined by members of Foster's family, appealed. This time, an appeals court panel ordered the release of nine of the 10 photos.
When the full U.S. Court of Appeals for the 9th Circuit, with headquarters in San Francisco, refused to hear the case, the government asked the Supreme Court for review.
The justices granted review Monday without comment in a one-line order. Though not yet scheduled, the case probably will be heard next fall.
(No. 02-954, Office of the Independent Counsel vs. Favish et al.)