Diego M. Radzinschi/Legal Times
Diego M. Radzinschi/Legal Times
Following a blockbuster term involving guns, Guantanamo Bay and the death penalty, the U.S. Supreme Court opens its doors to a new term with less drama, more cases initially and many challenges having potentially major implications for business, the environment, injured consumers, job bias victims and law enforcement.
If the docket thus far appears to lack possible landmark cases, the term's drama level could change quickly after the justices hold their summer conference meeting on Sept. 29 in which they generally add cases from more than a thousand filed during the summer months. They also continue to add cases to the term's argument docket until about mid-January.
One case likely to raise the stakes considerably, if granted review, is perhaps the most significant voting rights case in decades -- Northwest Austin Municipal District Number One v. Mukasey, No. 08-322. The case challenges Congress' recent reauthorization of Section 5 of the federal Voting Rights Act of 1965, the heart of the landmark law that changed the voting landscape in America.
The justices will return in the new term to several areas of apparent strong, ongoing interest:
• Business is seeking federal pre-emption of state personal injury suits in the pharmaceutical drug and tobacco arenas.
• Employees and employers square off in two job bias cases, one involving retaliation and the other pregnancy leave and retirement credit.
• Sexual harassment in schools draws the justices into the interplay of two major discrimination statutes.
• And an unusually large number of environmental cases -- four -- will be argued, ranging from Navy sonar and its effect on marine mammals to the use of cost-benefit analysis in setting environmental standards.
• Among other issues, there also are "dirty words" in a Fox Television challenge; a free speech challenge involving a monument to the "Seven Aphorisms" of the Summum religion; liability-immunity issues for prosecutors and top federal officials; terror victim compensation lawsuits; and counsel representation in state clemency proceedings.
The high court has slotted 43 cases (counting consolidated cases as one) and one original case for argument and has filled its argument calendar through December. That contrasts sharply with the previous term, whose argument docket, before the court's summer conference, held only 26 hours of argument, an insufficient amount to fill the calendar through December.
Also strikingly different is the return of afternoon oral arguments: four in October and three in November.
The rather "quiet" docket thus far may be due partly to the natural ebb and flow of cases at the high court and partly to a conscious choice, suggested sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law, who follows the docket closely.
"This group of justices, I think, have a feel for their place in the three-branch conversation," he said. "Given that the other two branches are in transition with the upcoming election, they may say, 'Let's keep a lower profile and clean up some of these circuit splits.' "
NOT-SO-LOW PROFILE
If any case on the docket is likely to capture early public attention, it will be the case of the "fleeting expletives." FCC v. Fox Television Stations, No. 07-582, arises out of two broadcasts -- the 2002 and 2003 Billboard Music Awards.
During the 2002 show, entertainer Cher used "fuck" once. During the 2003 show, a dialogue between Nicole Richie and Paris Hilton included the one-time-only use of "shit" and "fucking."
The Federal Communications Commission, reversing a 30-year-old policy, decided in 2006 that "fleeting expletives" can be banned from the airwaves as indecent speech. The 2nd U.S. Circuit Court of Appeals struck down the policy as "arbitrary and capricious" under the Administrative Procedure Act. The FCC, said the court, had failed to produce "any evidence that suggests a fleeting expletive is harmful," much less that any such harm was "serious enough to warrant government regulation."
The government, in its petition, told the justices, "The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives."
Although the case contains a First Amendment issue, its outcome is likely to turn on whether the appellate court erred in its view of what the APA required of the FCC in changing its policy, according to lawyers and scholars following it closely.
From fleeting expletives to permanent monuments, Pleasant Grove City, Utah v. Summum, No. 07-665, is also a potential headline grabber raising a First Amendment speech issue.
Pleasant Grove City is challenging a decision of the 10th U.S. Circuit Court of Appeals holding that it must permit the erection of a monument to the "Seven Aphorisms" of the Summum religion in a municipal park that also displays a Ten Commandments monument.
"No one can seriously suggest that a practice of private citizens affixing 2-ton concrete memorials or statues to public park grounds is an activity that is traditionally associated with such public spaces," said the city's high court counsel, Jay Alan Sekulow of the American Center for Law and Justice.
The 10th Circuit said the park was a traditional public forum and the city's restrictions on "speech" there were subject to strict scrutiny. It rejected the city's argument that the Ten Commandments monument -- erected and owned by the city -- constitutes government speech and that the city is free to make content- or viewpoint-based restrictions on what to display in the park.
'CRIMINAL-LITE'
Last term, the justices dealt with an array of major criminal justice issues. In the death penalty area alone, they decided challenges involving the lethal-injection protocol, capital punishment for rape of a child, and the effect of violations of international treaty obligations on state court criminal procedures.
The Court also continued elaborating on the role of judges in the era of now-advisory Federal Sentencing Guidelines.
"I think last term was 'criminal-heavy,' " said Ohio State's Berman. "I won't say they're tired of this, but by design or happenstance, they've ended up with cases somewhat below the radar screen." Beyond that, he added, at least when it comes to the federal criminal justice system, they've done so much that is still echoing, for example in sentencing. "There's still a lot to chew on by the lower courts before they feel like jumping in again."
Perhaps the most immediate, high-profile decision facing the justices in the criminal justice area this term is whether it will reconsider last term's ruling striking down capital punishment for the crime of child rape -- Kennedy v. Louisiana, 128 S. Ct. 2641. The justices asked for new briefing by both sides after Louisiana and the federal government sought rehearing on the basis that the Court did not take account of a federal law authorizing death for child rape in the military justice system when it found a national consensus against such laws.
Almost without fail, the Court each term grapples with Fourth Amendment search issues, and the new term is no different, with four already slotted for argument. The four cases ask:
• Whether evidence must be suppressed when police make an arrest based on a good-faith reliance on faulty information, such as an erroneous outstanding arrest warrant. Herring v. U.S., No. 07-513.
• Whether the warrantless search of Rodney Gant's car, after he was handcuffed and placed in a squad car, was an unreasonable search and seizure. Arizona v. Gant, No. 07-542.
• Whether the police violated the Fourth Amendment when, after making a routine stop for a suspended license, they searched Lemon Johnson's person. Arizona v. Johnson, No. 07-1122.
• And whether the "consent once removed" doctrine applies when a police informant, making a drug sale in a suspect's home, signals police, who then enter and search the suspect's home without a warrant. The case also asks whether the officers are entitled to qualified immunity and whether the justices' seminal qualified immunity decision -- Saucier v. Katz, 533 U.S. 194 (2001), should be overruled. Pearson v. Callahan, No. 07-751.
"A few years back, the Court seemed to lose interest in the Fourth Amendment, but I think there's been a resurgence," said criminal law scholar James J. Tomkovicz of the University of Iowa College of Law.
Immunity for prosecutors and their supervisors is the issue in Van de Kamp v. Goldstein, No. 07-854, in which the justices will decide whether prosecutors are entitled to absolute immunity from a suit by someone wrongfully convicted of murder. Thomas Goldstein charges that prosecutors failed to share crucial information about a jailhouse informant's testimony during his trial.
The high court faces an important Sixth Amendment case asking whether a state forensic analyst's laboratory report, prepared for a criminal prosecution, is "testimonial evidence" subject to the demands of the confrontation clause. Melendez-Diaz v. Massachusetts, No. 07-591.
PRESSING QUESTIONS
The justices have a number of other important cases raising difficult issues with potentially sweeping effect.
Fitzgerald v. Barnstable School Comm., No. 07-1125, involves the alleged sexual harassment and bullying of a female kindergarten student by a male eighth grader multiple times on the school bus and in school. The kindergartener's parents sued the school district alleging violations of Title IX of the Education Act Amendments of 1972 and 42 U.S.C. 1983. The parents lost in the lower courts on both claims.
They are asking the justices whether Title IX, which generally prohibits sex discrimination in federally funded schools, bars students from challenging sex discrimination also as a constitutional violation under Section 1983. The 1st U.S. Circuit Court of Appeals said that Title IX was a "remedial" statute by which Congress intended to allow only those remedies referred to in the statute itself.
Harbison v. Bell, No. 07-8521, asks whether federal law permits federally funded habeas counsel to represent condemned inmates in state clemency proceedings when the state has denied state-funded counsel for that purpose.
Ministry of Defense of Iran v. Elahi, No. 07-615, examines whether the Terrorism Risk Insurance Act of 2002 permits someone to collect a wrongful death judgment against Iran by attaching damages recovered by Iran in an unrelated contract dispute as the "blocked assets of [a] terrorist party."
Negusie v. Mukasey, No. 07-499, asks whether a foreign citizen, denied asylum because of his persecution of others, can argue that he was compelled to do so by his military superiors.
And, in Ashcroft v. Iqbal, No. 07-1015, the justices will decide whether government officials have qualified immunity from a suit brought by a former prison inmate, arrested in the immediate aftermath of Sept. 11, alleging abuse and violations of his constitutional rights while confined.
