First, it started four weeks before the first Monday in October, when the Justices in a September session took up federal campaign finance laws. Based upon the questions (and answers) during a rare summer oral argument, it is virtually a lock that a majority of the Justices will vote to overturn the Court's own precedent and dramatically reduce the impact and effect of the McCain-Feingold law. And if this occurs it will probably be the biggest decision of the term.
Meanwhile, the Court's work this fall, winter and spring is almost entirely devoid of "traditional" hot button cases. I can't remember the last time that occurred. At least at the moment, subject to the addition of new cases to be heard early in 2010, there is no grand abortion case, no Second Amendment tussle, no dynamic environmental law fights over owls or whales or snails, not even a resonant showdown between employee and employee a la Lily Ledbetter. Right now, there isn't even a good, solid, terror law case set for review, although that is likely to change as the Justices round out their calendar.
Sure, there will be decisions we'll all be talking about when they come down. There always are. In fact, one of the very first cases of the October term is one of those made-for-cable conflicts involving a series of dog-fighting videos and the first amendment. It's got lots of sound, lots of fury, but it's not likely to change your life or mine (unless you are into such things, in which case shame on you). Lucky for her, Justice Sonia Sotomayor's debut term sure doesn't figure to posses much of the political and partisan steam its recent predecessors have had.
She'll instead wade into the deep water slowly, with cases involving the Petroleum Marketing Practices Act and the Mobile-Sierra doctrine. The woman said to have "saved" baseball in 1995 will also hear a case involving the National Football League and its licensing rules and contracts. She'll have an opportunity, in other words, to showcase what she stubbornly insisted at her confirmation hearing was a nonpartisan, practical and moderate approach to core business cases. The Term so far is rife with them.
Sotomayor, Colleagues Pose for Group Photo
Corporate America, especially conservative Corporate America, is on the bit about a separation-of-powers challenge to Sarbanes-Oxley, the federal legislation that regulates auditors at publicly-held companies. The Justices also will hear Conrad Black's appeal of his fraud conviction which gives them the chance to review the controversial "honest services" doctrine. And in this new age of bankruptcy, the Court will hear a case involving the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a federal statute which is as complicated as it titled.
There is little complicated about the big criminal law case of the term. Should juvenile offenders be exempt from life sentences without parole for crimes other than murder? A few years ago, the Justices reaffirmed that juveniles are to be treated differently from adults when it comes to sentencing. The state-court case, , will help tell us how far those differences really are. For good measure, the Justices are again going to look at "Miranda" warnings and there is a decent chance the Court will limit their application.
If the Court is staying away from divisive cases and controversies, it appears vitally and some might say unusually interested in the mechanics of the legal system. No fewer than six cases about legal ethics will be heard by the Court. This at a time when more and more observers are noticing the Court's "the incredible shrinking docket," a marked trend toward the Court's acceptance of fewer cases which began with the ascent of William H. Rehnquist and which has continued through his mentee, Chief Justice John G. Roberts, Jr. Speaking of the silly phrase "judicial activism," I guess when the Court eventually reaches zero cases heard each Term it truly will be considered a legitimately "inactive" one.