First Monday
Is the third term the charm for Chief Justice Roberts and Justice Alito?


Jonathan H. Adler

As the first Monday in October, today marks the opening of the Supreme Court’s 2008-09 term, the third term with both of President Bush’s Supreme Court nominees, Chief Justice John Roberts and Associate Justice Samuel Alito. This term may not be momentous — nothing like last term, in which the Court invalidated the Military Commissions Act, held the death penalty for child rape unconstitutional and declared, for the first time, that the Second Amendment protects an individual right to keep and bear arms — but it could still be significant Despite the lack of such blockbuster cases — perhaps even because of the term’s more mundane docket — it may foreshadow the course of the Roberts Court for years to come.

Upon conclusion of the first term with Roberts and Alito on the Court together, many news and opinion outlets proclaimed the arrival of a right-wing majority on the Court. That term featured a disproportionate number of 5-4 decisions in which the judges divided along ideological lines. The Court seemed particularly conservative to some because Justice Kennedy joined (or authored) conservative opinions, such as that upholding the federal Partial-Birth Abortion Act or curtailing the use of race in school assignments.

Claims of a conservative ascendency were premature, however, as I explained for NRO. The 2007-08 term presented a quite different picture. There were fewer 5-4 decisions, and even fewer dividing the Court along ideological lines. Justice Kennedy joined with the Court’s more liberal cases in several important cases, producing results one would never expect from a “right-wing” judiciary, particularly with regard to the war on terror.

This trend continued last week, as the Court denied rehearing in Kennedy v. Louisiana, a case in which a five-justice majority announced that the death penalty for child rape is unconstitutional. In an opinion by Justice Kennedy, the Court declared that capital punishment in such cases is disproportionate and unjust. In its original opinion it explained that imposing a capital sentence for non-lethal crimes conflicts with an emerging social consensus — only to discover that its characterization of existing law (and popular opinion) was wrong. No matter, the Court explained in its denial of rehearing, as the conclusion of five justices that capital punishment for child rape is unacceptable is sufficient to declare it permanently unconstitutional.

The case almost certain to attract the most media attention this term is FCC v. Fox Television Stations, concerning the Federal Communications Commission’s decision to prohibit broadcast of “fleeting” expletives. Federal law has prohibited the broadcast of “obscene, indecent, or profane language” on radio or commercial television since 1927. Yet the FCC has long maintained a policy of only sanctioning the repeated use of vulgar or indecent language, effectively exempting the “isolated or fleeting” use of profanity, such as may occur during a live broadcast.

The FCC tightened its policy in 2004 after receiving complaints about a few vulgarities in speeches by Cher, Bono, and Nicole Richie during live awards shows. The FCC also fined CBS for Janet Jackson’s infamous “wardrobe malfunction” during a Super Bowl halftime show. Several TV stations successfully challenged the new FCC policy in the U.S. Court of Appeals for the Second Circuit, alleging it is “arbitrary and capricious,” if not actually unconstitutional under the First Amendment. It is likely the Court will dispose of the case on administrative law grounds, leaving the constitutional question for another day, but it may nonetheless signal its view of broadcasters’ First Amendment rights and the newest justices’ views on the extent to which the First Amendment protects potentially offensive speech.

This week the Court will hear the first of several environmental cases. In Winter v. Natural Resources Defense Council the Court will consider the Bush Administration’s challenge to a lower court injunction barring the Navy’s use of sonar during certain training exercises. Environmentalist groups filed suit to block use of the sonar charging the Navy failed to conduct an adequate Environmental Impact Statement to consider, among other things, the sonar’s potential impact on whales. Sonar use could proceed without such a study, according to the Bush Administration, because the President’s Council on Environmental Quality, due to “emergency” circumstances.

There are four other environmental cases before the Court, potentially making this quite a green term. In Entergy v. EPA, the Court will consider whether the Environmental Protection Agency may consider cost-benefit analysis when setting regulatory standards for cooling water intake structures under the Clean Water Act. In another, the Court will consider the scope of joint and several liability under the federal Superfund hazardous waste cleanup statute, with particular attention to the imposition of liability on firms that arrange for waste disposal and the apportionment of liability among potentially responsible firms. Both cases could be more significant than their descriptions suggest. Other cases concern when environmentalist groups may challenge U.S. Forest Service rules and the applicability of Clean Water Act permit requirements to mining activities in Alaska.

Later this term the Court will again render judgment on legal questions arising from the war on terror. In Ashcroft v. Iqbal, the Court will consider whether high-ranking Administration officials, are entitled to qualified immunity against a suit alleging mistreatment of post-September 11 detainees. Javaid Iqbal was arrested for using false identification, but was placed in solitary confinement after he was identified as a “high interest” detainee. Iqbal claims his classification and subsequent mistreatment were due to racial and religious discrimination, and filed suit against Attorney General John Ashcroft and FBI Director Robert Mueller, among others. The federal government sought to have Iqbal’s complaint dismissed, but lower courts let the case proceed, so the Justice Department sought Supreme Court review.

The Court has quite a few criminal law cases on the 2008-09, including several cases concern the legality of police searches. One, Herring v. United States, concerns whether courts must exclude evidence obtained in a search incident to an unlawful arrest where the officer believed, in good faith, that the arrest was legit. Here the officer arrested Herring after he was told there was an outstanding warrant for his arrest. Only after the arrest, and a search that uncovered Herring’s gun and some drugs, did the officer learn of the mistake. Before the Court is the question whether the search can stand, or whether the evidence must be excluded. Other cases relate to the Sixth Amendment, defendants’ speedy trial right, and the implications of a prosecutor’s violation of a plea bargain’s terms.

The Court has only accepted 53 cases for the term thus far. It is likely to add at least a dozen or two more in the coming weeks — last year the Court issued opinions in 67 cases, the fewest in recent years. Likely candidates include a challenge to Congress’ renewal of the Voting Rights Act and yet another case concerning the classification and detention of enemy combatants. Another potential case waiting in the wings is a constitutional challenge to the Public Company Accounting Oversight Board created by the Sarbanes-Oxley Act.

Even with the addition of a few more high-profile cases, this is likely to be a relatively quiet year on the Court. The lack of ideologically charged cases also makes this term unlikely to provide much evidence of the alleged conservative ascendency. On many issues, the Court seems increasingly prone to split along non-ideological lines, confounding courtside pundits. In others, the Court seems unlikely to spit much at all, providing lower courts with clearer guidance and reminding us that Supreme Court litigation is not — or need not be — nothing more than politics conducted by other means. Yet each Court term offers some share of surprises, and there’s little reason to think this term will be any different.

Contributing Editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at Case Western Reserve University School of Law.