The current term is history, so what's up for the Supreme Court's next term, which begins Oct. 6? More cases, heard more quickly, and possibly decided with more division among the justices than the term just ended.
The Court has already granted review in enough cases to fill 43 hours of oral argument, allowing Chief Justice John Roberts Jr. to hasten the argument calendar, and making it likely that the Court will decide more cases with signed opinions after argument than this term's 67, the lowest number in more than 50 years.
The cases pose a range of tough and possibly divisive issues from religion in the public square to expletives on the public airwaves. More about those later. At a Court that changes its ways rarely and uneasily, tinkering with the calendar is as significant as the cases it will consider.
Steering the Supreme Court's doctrine in a new direction is one thing. But altering its calendar -- that's a true sign that a new chief justice has taken control of the Court. Roberts announced the change in a June 6 speech at the judicial conference of the U.S. Court of Appeals for the D.C. Circuit.
In October and November, the justices will hear three arguments a day instead of two, likely leaving fewer cases to be argued next spring -- possibly as few as one a day. By front-loading the calendar, Roberts aims to give himself and his colleagues more decisions to write and issue through the winter, alleviating the Court's usual headlong race to finish the term's work in May and June.
In his speech, Roberts acknowledged his new plan is causing "a little bit of grief" in the solicitor general's office and elsewhere. And there is concern among Supreme Court practitioners that in the Court's push to fill up the October and November calendars, it may run out of granted cases for its argument calendars in early 2009. If that happens, then the briefing schedule for the cases it grants this fall will have to be expedited to make them ready for argument in the January-to-April period.
"There will be huge pressure on the solicitor general's office," says David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, a veteran of the SG's office. The government lawyers will have to rush their brief writing even as they are preparing for a heavier load of oral argument in October and November. Frederick wonders if the new calendar will "serve the Court's long-term interest, if the advocacy is not as polished." Thomas Goldstein of Akin Gump Strauss Hauer & Feld also forecasts "heartache" for briefing in January cases and beyond caused by the new fall calendar.
These new calendar pressures will also come at a time of transition in the solicitor general's office. Gregory Garre is the acting solicitor general, but will almost certainly hand over the reins to a new SG after the next president is inaugurated in January. The calendar changes mean that more decisions than usual will probably be announced before the executive branch changes hands.
But Evan Tager of Mayer Brown applauds the calendar adjustment as an overall plus. "It should give the Court the luxury of not having to rush out dozens of opinions during the final months of the term," Tager says. "More considered and polished opinions are a benefit to both the Court and to the lower courts and the bar."
The fact that even a minor change in the Court's argument routine stirs debate should be no surprise, as Roberts' predecessor William Rehnquist found out early in his chief justiceship in the late 1980s. That was a period when the Court frequently heard three or four hour-long arguments per day, with two in the morning and one or two in the afternoon, setting aside the period between noon and 1 for lunch. The Court begins its sessions at 10 a.m.
But the second argument of the day would often spill past the noon hour. Instead of banging the gavel at the stroke of noon and making the lawyers from that case return at 1 to finish arguing, Rehnquist began letting lawyers argue until as late as 12:15 or later so they could finish uninterrupted. Word got out that his colleagues were displeased about their foreshortened lunch hour, and soon that experiment was aborted. How Roberts handles the lunchtime dilemma when three-argument days are routine this fall remains to be seen.
The other major change next term may be an uptick in the number of cases to be argued and decided. The justices are apparently sensitive about media coverage of their shrunken docket, especially at a time when Congress is considering judicial salary increases.
Justice Ruth Bader Ginsburg acknowledged as much in her speech May 19 before the American Law Institute. Next term, she said, "may quiet fears that the Court has grown lazy or excessively restrained in granting review." She was pointing to a surge in granted cases at the time that put the Court on track to hear as many as 100 cases next term. That trend has since slowed, but with new cases granted last week, the Court is almost certain to hear more cases next term than last.
One hundred cases, Ginsburg said in her speech, "is about the limit the Court can handle without returning to the days when more than occasionally the justices fired off separate opinions because time was too short to gain accommodations" from the justice writing the majority.
Among the cases likely to divide the Court and make headlines next term are:
• Wyeth v. Levine: This is the latest and the most important of a recent run of cases in which businesses seek federal pre-emption of state law, and so far they've usually gotten it. But with drug safety at stake, it may be tougher for pharmaceuticals to win this one. At issue is whether Food and Drug Administration drug labeling laws trump state product liability lawsuits brought by those injured by unsafe drugs.
• Pleasant Grove City v. Summum: One reason the term that ended last week was harmonious may be that it had no church-state cases before it. This case will bring those tensions back to the Court, even though it is framed as a government speech case. The Court ruled three years ago that a long-standing Ten Commandments display could remain on public property. The inevitable next shoe drops in this case, in which a Utah town that has allowed a Ten Commandments display claims it can nonetheless reject a proposed display of "Seven Aphorisms" by the religious sect called Summum.
• FCC v. Fox Television Stations: Comedian George Carlin did not live to see it, but some of the same "dirty words" that got him in trouble and led to the FCC v. Pacifica Foundation ruling 30 years ago will probably be uttered before the high court this fall. In this case, the "fleeting" use of expletives in live TV broadcasts by the likes of Cher and Nicole Richie is at issue. Sidley Austin's Carter Phillips, who will argue for the networks that aired the words, says that unless otherwise instructed by the Court, he plans not to euphemize the f-bomb and s-bomb during oral argument.
• Winter v. Natural Resources Defense Council: The Court on June 23 agreed to referee this battle between environmentalists and the military over the continued use of sonar by Navy vessels near whales and other mammals. The 9th U.S. Circuit Court of Appeals found that the Navy had not proven "emergency circumstances" sufficient to lift an injunction against the sonar use, which is said to injure whales.