Ahead at Supreme Court: big cases, no blockbusters

Its new term, which starts Monday, includes cases on detainees and TV language.

By , Staff writer of The Christian Science Monitor

The new term at the US Supreme Court is a little like a vegetarian buffet, plenty of interesting items but nothing really meaty. At least not yet.

A legal dispute over religious monuments in public parks, whether senior US officials can be sued for alleged detainee abuses in the war on terror, and what to do about foul language blurted out during live television broadcasts are among the issues facing the justices as they prepare to begin their 2008-09 term on Monday.

They are set to take up a dispute between the US Navy and environmentalists in California over the dangerous effects of sonar on whales. They will consider two cases examining whether tobacco and drug companies regulated by federal agencies are shielded from lawsuits filed by injured residents in Maine and Vermont. And they will decide if senior management can fire employees in retaliation for accusing a senior manager of sexual harassment.

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Court scholars are watching closely to gauge the high court's predicted move to the right under Chief Justice John Roberts, while at the same time examining occasional lurches to the left at the behest of centrist swing voter Justice Anthony Kennedy.

While this lineup of cases highlights many interesting issues, legal analysts say that the court's docket does not yet include a case of blockbuster status like last term's battle over Second Amendment gun rights or the extension of constitutional rights to terror suspects at the Guantánamo Bay, Cuba, prison camp.

There are potential blockbuster cases looming on the horizon, however. They include appeals testing the scope of presidential power in the war on terror and a challenge to the constitutionality of the Voting Rights Act.

Lawyers for alleged Al Qaeda sleeper agent Ali Saleh al-Marri are asking the Supreme Court to examine President Bush's claim of power to hold legal residents (and US citizens) in indefinite military detention within the US without criminal charge or trial.

"There is really no limit as to who can be subject to military detention in the United States," says Mr. Marri's lawyer, Jonathan Hafetz of the American Civil Liberties Union. "There is no limiting principle."

In a major voting rights case, a municipal utility district in Austin, Texas, is challenging its inclusion on a list of suspect discriminatory jurisdictions under the Voting Rights Act (VRA). Lawyers for the district are urging the high court to exempt it from VRA restrictions since there is no history of voter discrimination within the utility district. Failing that, the lawyers are asking the high court to declare that Congress exceeded its authority in reauthorizing the VRA two years ago.

The most important long-term development at the US Supreme Court this year may not even take place at the court. It could happen Nov. 4 with the election of the next president.

Legal analysts predict there could be from one to three retirements from the court during the next four years. The speculation focuses on members of the court's liberal wing, particularly Justice John Paul Stevens who is 88.

A single retirement could shift the balance of power on the closely divided court if the new president replaces a retiring liberal justice with a more conservative individual.

"The court is at a tipping point, as it has been for several years," says Supreme Court lawyer and scholar Thomas Goldstein. "If a President McCain was able to appoint more Supreme Court justices, it would move the court very significantly to the right."

Any resulting shift to the right would diminish the court's liberal wing and could eliminate Justice Kennedy's powerful role as a swing voter. "If you move Justice Stevens out of the way [with a conservative replacement], then you move Justice Kennedy out of the way," Mr. Goldstein says.

In contrast, the most a President Obama could hope for would be to maintain the rough status quo by appointing a liberal, analysts say.

Beyond the vagaries of possible Supreme Court appointments and confirmation battles, legal scholars will be closely following the court for further evidence of the voting characteristics of the court's two newest members, Chief Justice Roberts and Justice Samuel Alito. Roberts joined the court in 2005 and Justice Alito in 2006.

One case that may prove particularly revealing involves the murky area of punitive damages. The high court has agreed for the third time to examine an Oregon jury's award of $79.5 million to the widow of a lifelong smoker.

In 2007, the Supreme Court ruled that the Oregon jury in her case had impermissibly held tobacco company Philip Morris responsible for harms to a wider group of smokers beyond just the plaintiff's late husband. The case was sent back to the Oregon Supreme Court to reduce the amount of the award to a level commensurate with harm to a single smoker. Instead, the Oregon Supreme Court once again upheld the $79.5 million award, basing its decision this time on a state law provision never considered by the US Supreme Court.

"The Roberts court has twice vacated a $79.5 million punitive damages award only to have the Oregon Supreme Court twice thumb its nose at the Supreme Court and defiantly reinstate that award," says Robin Conrad of the National Chamber Litigation Center. "Despite the Supreme Court's effort at curbing outrageous jury awards, rogue state courts like Oregon's supreme court continue to look for new loopholes."

Thus, the stage is set for what may become a fiery judicial showdown between the nation's highest court and Oregon's highest court. Ultimately the case may reveal more about how the Supreme Court views its relationship to state court judges than how the excessive punitive damages issue should be resolved, analysts say.

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