Positive Liberty

For those who don’t know, the Supreme Court term runs from October to May, so their 08-09 term will begin soon. The following prospective comes from the LIIBulletin, a service of the Legal Information Institute at Cornell University. They release syllabi of each decision as it is announced through the year, with links to full-text versions of the opinions. If you are an inveterate court-watcher who just can’t wait to be informed, you can sign up for the LIIbulletin. Now, on to their prospective.

2008-09 Term Prospective

Welcome back to LIIBULLETIN, the Legal Information Institute Supreme Court Bulletin, where we are looking forward to covering the 2008-2009 term. The Court is predicted to hear arguments in a larger number of cases this year as Chief Justice Roberts continues his leadership. Last year, the Roberts court produced fewer 5-4 split decisions than it had in prior terms, perhaps reflecting a trend toward narrower decisions that more justices can agree to. Chief Justice
Roberts has also altered the oral argument calendar; the Court will hear more cases in the Fall than usual in an effort to release polished decisions in the winter rather rushed decisions in the spring. We identify several of the more high-profile cases which promise spirited exchange on and off the bench.

Controversial Issues on the Docket

In Ashcroft v. Iqbal, the Court will follow last term’s historic decision in Boumediene v. Bush, where the Court enabled Guantanamo detainees to challenge their imprisonment, by determining whether high-ranking federal officials can be held responsible for the abuse of Muslims and Arabs arrested and imprisoned after September 11. Iqbal, a Muslim Pakistani in the United States, was arrested and deemed “of interest” to the September 11 investigation. Like other Muslims and Arabs, Iqbal was held separately from the general prison population and was allegedly mistreated during his imprisonment. Upon his release, he sued the Director of the FBI and the former Attorney General, among other federal officials, and claimed that they were responsible for lower-level decisions. He alleged unlawful religious and racial discrimination. The federal officials sought to apply qualified immunity, a doctrine which protects government officials from being sued for anything but a clear constitutional violation. They further argued that the case should be dismissed, as there was no evidence that the high-ranking officials were even aware of the maltreatment. Both the district court and the Sixth Circuit found that qualified immunity did not apply and allowed the case to go forward due to the “serious allegations of gross misconduct.” In affirming that Iqbal’s lawsuit could proceed, the Sixth Circuit echoed the Court’s sentiment in Boumediene that the importance of constitutional protections is that they survive in extraordinary times. Given the heightened interest on both prisoners’ rights and national security, this case will undoubtedly spark heated interest.

As environmentalism increasingly rises into prominence, another high profile case the Court will hear this term is Winter v National Resources Defense Council. This case pits the Navy against environmental advocates, as the Navy seeks to overturn a preliminary injunction that the Ninth Circuit affirmed which imposed significant limitations on the Navy’s training exercises off the coast of southern California. At issue is the Navy’s use of a certain type of sonar which is harmful to marine mammals, including several endangered whales. In this case, the Court will have the opportunity to consider the standard the Ninth Circuit applies before granting a preliminary injunction, as well as the Navy’s assertion that the judiciary has no place evaluating the executive’s determination that the training is essential to national security.

Wyeth v. Levine is one of the most anticipated cases of the term, and is certainly the most watched within the medical and tort law fields. Levine sued the drug maker Wyeth under a state failure-to-warn claim after suffering an adverse reaction to Wyeth’s drug which led to the amputation of her arm. Wyeth is claiming that the state law claim is preempted
because their warning label was approved by the FDA. The court below rejected that argument, finding that FDA approval is the regulatory minimum and not a shield against state law claims. The Supreme Court, however, accepted a very similar argument in the realm of medical devices last term, in Riegel v. Medtronics, holding state tort actions were preempted by FDA approval. If the Court adopts a similar rule in this case, it would radically change actions
against drug companies, making it much harder for plaintiffs to get into court.

This term will also see a return of church-state tension in Pleasant Grove City v. Summum. Three years ago, in Van Orden v. Perry, the Court upheld a public Ten Commandments display, while finding other public Ten Commandments displays unconstitutional in McCreary County v. ACLU. Unlike in the earlier cases, the issue in Pleasant Grove City is not whether a Ten Commandments display in a public park is legal. Rather, the Court will decide whether a local government may refuse to display an “Aphorisms” statute donated by the religious sect Summum when the city already displays a donated Ten Commandments statute. Summum sued, claiming that the government’s refusal to display its
statute in the park was a violation of its right to free speech. The Court has held in earlier cases that public officials may not discriminate against groups in public parks because of their messages or religion. The Tenth Circuit applied the free speech test and required the city to either display all religious monuments donated by third parties or display none of the donated monuments. With concerns that the Tenth Circuit decision will require the removal of historic religious displays, both local governments and religious groups will be closely watching
this case.

Finally, the Court may reopen the death-penalty-for-child-rape case, Kennedy v. Louisiana, which it decided last year. In its decision last spring, the Court found that the death penalty would be disproportional to the crime of raping a child. In reaching that decision, the Court surveyed state laws and stated that there was no federal law on point. However, the Court failed to consider a federal law in the military justice system which authorizes the death penalty for the rape of a child. Acknowledging its error, the Court called for briefs on a possible rehearing in the case.

As usual, an exciting year at the Court, with your civil rights and the concept of limited government at issue.

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