A Whale Of A Tame Term

Andrew Cohen: Judging By Their Caseload, The Supremes Are Not Courting Controversy This Year

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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You know it’s a less-than-fascinating Supreme Court term when the most interesting case on the docket so far may have to do with sonar and whales and the Navy’s definition of military necessity.

Indeed, it’s striking to see just how few “controversial” (read: socially divisive) cases the Justices have chosen to hear to begin the 2008-2009 judging season.

I guess that John Roberts and Company want to lie low until the campaign is over lest they infuriate either of the other two branches with a messy constitutional showdown (over, say, the White House’s dubious refusal on executive privilege to allow Karl Rove and Harriet Miers to testify in the still-alive, even-growing U.S. Attorney scandal).

Or maybe the Supreme Court is so used to not being a significant part of the election debate that the Justices figured no one would notice anyway. Whatever.

While the candidates mostly avoid talking about the vast differences they have over judicial philosophy and the Court, the Justices this fall will be tackling meat-and-potato legal issues like search and seizure, employment discrimination, environmental regulation, anti-trust conflicts, jury instructions, and at least two cases involving the rights of Native Americans.

Each of these cases will be tremendously important to a great many people; but they aren’t volatile enough to warrant mention on any campaign commercials. Nothing bores voters than the words “clean,” “water” and “act” read consecutively.

Even a voting rights case (Bartlett v Strickland) which will be heard three weeks before Election Day won’t have political ramifications until the 2010 census. The fight there is over another gerrymandering scheme that’s legally suspect even as it is politically expedient (they always are, those redistricting plans). You just know that’s not a topic any of the campaigns want to discuss with one month to go.

There are no big terror law cases on the docket; no abortion rights cases and no same-sex marriage cases. There is no substantive death penalty case. Not much for the radio talk show hosts to churn into vengeful wrath.

But what the Court’s docket lacks in political or moral or cultural drama it makes up for in legal depth. For example, there is an important case early in the term which will help define the limits of state law when it comes to drug labels and the Food and Drug Administration. The question is Wyeth v. Levine is whether federal labeling laws trump state laws designed to punish pharmaceutical companies which fail to adequately warn consumers about the dangers of drugs. A win for the drug companies jeopardizes such laws all around the country; a win for the state of Vermont jeopardizes the profits of drug companies.

Another interesting case is likely to generate fodder for law school professors for decades to come. In Vermont v. Brillion we may learn whether a criminal defendant’s right to a “speedy trial” may be infringed upon if the delays to that “speedy” trial were caused by the defendant’s own lawyers.

There is an employee pension case (and a divorce, and a battle between heirs) that sounds straight out of "The Guiding Light" or the Lifetime Channel. And a case that all of my bosses seem particularly interested in: the “fleeting expletives” case pitting the music broadcast industry (whose stars sometime swear on live television) against the Federal Communications Commission, which says enforcement of a ban on potty-mouth language is legal.

In an immigration case that echoes across the halls all the way to Nuremburg, the Justices also will hear a case about whether a man, a low-ranking prison guard at an Eritrean camp may be denied asylum in the United States under a law designed to prevent people who commit genocide from seeking refuge here.

Montana is fighting with Wyoming over water rights. And dozens of cases will be put onto the docket before the end of the term. Maybe the “star” of the class will emerge from those.

Meanwhile, the only case to be argued before the election which might have forced silly politicians to yap about “judicial activism” will be heard on the first Monday after the votes are cast. In that case, the Justices will have to decide whether a city can prohibit a religious monument to be placed in a public place despite the presence - in that very same place in Utah - of a monument to the Ten Commandments. We may know soon, then, whether the First Amendment prohibits a government from valuing certain kinds of religious monuments over others. But by the time the case is over a new president will be in the White House.

A new president. That brings me to the most important story of all about the start of the Supreme Court term. It is quite likely - I will wager “almost certain” - that the Court’s makeup will change before the Justices sit again on the first Monday in October 2009. At least one and probably two Justices will leave. So even if the Court doesn’t make it into your mind or onto your television this fall, its future (and yours) depends upon your vote.

[tallyman2008]

Mr Cohen

Excellent analysis and insightful observations for this First Monday in October.

You seem to have discovered a potentially New Political Movement, which might be the fruition of one currently in vogue, and in some ways possibly not a ''bad'' one:

Judicial In-Activism

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One case worth attention is the Navy Sonar.

Was my job in the Navy years ago, and will speak on behalf of the Whales.


Anyone who claims the audio decibel levels are not ''harmful'' should prove that by getting in the water during a ''ping transmission'' - much like a diver would.

But, beware, is against Navy Regs to transmit Sonar with Divers in the Water.

Least it was in the old days during ''Nam Era. Can not imagine much has changed since modern Sonar can create acoustic energy in range of 140+ db.

HOW LOUD IS 140 db ?

Put your face in the speakers at a Rock Concert.

Or stand near a 747 as it takes off.

Then turn it up 2x or 3x or even 4x.

And THAT is in air - water conducts sound much, much better.



130 years ago our Government was behind an extinction of historic proportion and shame:

We wiped out the Buffalo.

Many at that time justified the slaughter by claiming ''military necessity.''

Sounds like a whale of a precedent.