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Justices to Weigh Free Speech, Environment in New Term

October 6, 2008 at 12:00 AM EDT
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On Monday, the Supreme Court opened its new term with a docket of wide-ranging cases on issues from broadcast indecency to environmental protection. Marcia Coyle of the National Law Journal explains what's on the agenda for this term and speculation over upcoming justice retirements.

JIM LEHRER: And finally, on this first Monday in October, a new term at the U.S. Supreme Court, with Marcia Coyle of the National Law Journal.

Marcia, welcome again.

MARCIA COYLE, National Law Journal: Thanks, Jim. Nice to be back.

JIM LEHRER: As always. In general, what are the expectations about this new court session?

MARCIA COYLE: Well, Jim, the term is opening on a relatively low keynote. And by that I mean there are no obvious blockbusters, as we saw last term, with the Second Amendment gun case, and Guantanamo Bay, and several big death penalty cases.

But having said that, I’ve seen terms begin like this before. And something can come along suddenly, a case — if you recall in 2000, the presidential election and the ballot dispute in Florida produced the memorable Bush v. Gore decision, so it can change rather quickly.

But just because we don’t have obvious blockbusters doesn’t mean that the court also doesn’t have very significant cases. And the way I look at a term is I try to see what areas of the law it seems to perhaps be able to do something very significant in.

So I see four clear areas here. It’s a potentially huge term for the environment. There are five cases, which is a large number on a small docket. And we’ll see the first of those on Wednesday, when the court hears arguments involving the Navy’s use of very sophisticated sonar and its impact on marine mammals.

First Amendment challenges

First Amendment and First Amendment-related, probably the two headline-grabbing cases of the term, one involves the Federal Communications Commission defending its policy that it can punish as indecent speech fleeting expletives. That's the one...

JIM LEHRER: Just one or two words, right?

MARCIA COYLE: Right, the one-time use, in this case, of the S-word and the F-word. And then also...

JIM LEHRER: And just for the record here, the SEC said they could punish. And now that's been appealed. And that's what the court must now resolve, right?

MARCIA COYLE: Exactly. The FCC, prior to 2006, did not punish fleeting expletives, but it changed its policy.


MARCIA COYLE: Fox Television brought the lawsuit to challenge it. And that's what's before the Supreme Court.


MARCIA COYLE: Another direct First Amendment challenge involves a church in Utah, the Summum Church. It wants to erect a monument in the Pleasant Grove City Municipal Park. That park has a monument to the Ten Commandments, other monuments that it says reflects the city's history and heritage. It won't let this church erect a monument to the Seven Aphorisms of the Summum religion.

That's a case that's going to revolve around, what kind of a forum is this city park? And are these monuments private speech, which you can't regulate, or government speech, which you can?

JIM LEHRER: Whether the city government can choose between religions that they would allow a monument for. That's basically it, right?

MARCIA COYLE: Well, it's really not a church-state case. It is a speech case.


MARCIA COYLE: But it does -- because the Ten Commandment monument is there, there is this aspect of religious discrimination.

Adding cases to the docket

JIM LEHRER: OK. Now you had a fourth category?

MARCIA COYLE: I did. It's pre-emption. It's a horribly wonky term or nerdy term, but it's really -- of all these cases, it may impact more lives in this country.

We had the first case today. It was the first case argued. And it involves companies trying to limit consumers or injured parties from using state courts and state laws to bring suits against them when they've been injured or harmed by a product.

Businesses operate across state lines. They much prefer to have a uniform federal system of regulation and not have 50 different state regulations. Consumers, when they're hurt, would much rather go into state court under their state laws, so there is that tension here.

JIM LEHRER: And in this case, it's a tobacco issue?

MARCIA COYLE: It is. It had to do with the labeling of light cigarettes, low-tar cigarettes. A group of Maine smokers challenged under the state's unfair trade practices law the labeling of Philip Morris light cigarettes, low-tar cigarettes, said it was misleading, deceptive. It really didn't tell you how heavy the nicotine was.

JIM LEHRER: So there are these four major areas that you've identified, and there are a lot more cases than they usual take this time, correct?

MARCIA COYLE: There are. The court had pretty much settled in the last almost decade on around 70 cases. When I started covering the court -- and I hate to say when I did...

JIM LEHRER: I won't tell anybody. You can tell me.

MARCIA COYLE: Please don't. OK. It was about two decades ago.


MARCIA COYLE: The court was hearing and deciding between 150 and 160 cases. There's been a lot of public talk about the court's amazing shrinking docket. And this year, the court is on track, though, to decide more than 70 cases. I don't know that it's in response to those concerns.

The chief justice, during his confirmation hearings, said he thought the court could be deciding more. It may just be the nature of the cases that come up through the pipeline from the lower courts that they're seeing more.

JIM LEHRER: But going back to your first point, that they've decided on these -- they've

accepted these number of cases now, that does not preclude, as you said earlier, another one coming in tomorrow that they could take and so this could grow?

MARCIA COYLE: That's correct. They continue to add cases to the docket until about mid-January. And then they fill their calendar for the term.

The 'Roberts court'

JIM LEHRER: All right. Help us understand as we go through this, this session, is Justice Anthony Kennedy going to probably remain the 5-4 decider, swing vote, as he has in the last couple of terms?

MARCIA COYLE: Well, I think he will. He is decisive in really a small band of legal issues where the court does seem to split 4-4, death penalty, race, religion, abortion.

JIM LEHRER: Those are pretty big areas.

MARCIA COYLE: They are big areas. They're very controversial areas. But the court also decides quite a few cases unanimously and by 7-2 splits. But on those high-profile issues, yes, he is the crucial swing vote. And right now, it appears he will continue to be.

JIM LEHRER: Continue to do that. All right, now this is now called the Roberts court. Is it -- explain to us what his relationship is now that that has changed and now it should be called or is called the Roberts court? Has he taken over?

MARCIA COYLE: I think he has. I think he runs a very tight ship. The court seems very harmonious because he has a very pleasant personality.

He has written some of the major decisions since he's come on to the bench in some very controversial areas, such as race, school segregation cases, so, yes, it is.

Each court takes the name of its chief justice. And I think he is still putting his stamp on this court. But I would say, yes, it's the Roberts court.

Possible retirements

JIM LEHRER: All right, finally, before we go quickly, what's the speculation around the court on possible retirements during this session?

MARCIA COYLE: This may be the real drama of this term, and it may come at the end of the term. There is speculation -- and I expect there will be increased speculation that several or one or two maybe, at most, will retire at the end of the term, partly because of age. Five of the nine justices are 70 or older.

And also a change in administrations also presents something of a logical time, if a justice is thinking about retiring. And depending on who wins the presidency could very well determine whether Justice Kennedy continues to be that crucial swing vote.

JIM LEHRER: And determine what the drama is, if there is, in fact, one?

MARCIA COYLE: Absolutely.

JIM LEHRER: OK, Marcia, thank you very much.

MARCIA COYLE: You're welcome.