Another case on the docket for the new term, which starts Monday, considers whether adherents of a faith called Summum may place a monument to the “Seven Aphorisms” of their faith in a Utah park that already contains a monument devoted to the Ten Commandments.
The two cases are the most colorful of the term so far, and they involve significant but perhaps not momentous First Amendment issues. Compared with the last term, which included historic cases concerning Guantánamo Bay, the Second Amendment and execution by lethal injection, the new term is a buffet without entrees. This year’s intellectual feast — Judge Robert H. Bork’s hopeful description of the work of a Supreme Court justice — is less filling.
By happenstance or design, the court will keep a low profile in the election season. While it is always dangerous to try to identify patterns in the cases the court accepts, which are after all a subset of the cases that happen to reach it, the docket so far is consistent with Chief Justice John G. Roberts Jr.’s stated preference for modest and incremental decision making.
But there are major cases on the horizon. The court will soon decide whether to hear challenges to the recent renewal of the Voting Rights Act and to the president’s power to order the military detention of people living in the United States.
The court is working at a brisker pace than it has in recent years. It is accepting more cases and hearing them earlier in the term. In October and November, the court will hear three arguments a day, rather than the usual two, returning after lunch for the third one.
By frontloading the arguments to the beginning of the term, which generally runs from October to June, the court may be able to issue decisions more regularly and avoid the usual end-of-term barrage of significant rulings.
Still, many of the cases on the docket feel warmed over, representing opportunities to refine and flesh out relatively well-established legal doctrines rather than to break new ground. Indeed, it is sometimes hard to avoid a feeling of déjà vu. A death row inmate from Tennessee, Gary B. Cone, is before the court for a third time. So is a $79.5 million punitive damages award against Philip Morris.
Perhaps the most significant cases of the term involve pre-emption, a doctrine that can bar state-court lawsuits over products that met federal safety standards and one that has repeatedly occupied the Roberts court. The doctrine is in some tension with the Rehnquist court’s attentiveness to state’s rights, which had been known for a time as the “federalism revolution.”
“Corporate America has discovered that they would much rather be regulated by one government in Washington than by 50 state governments, or by the most aggressive of them,” said Kathleen M. Sullivan, a law professor at Stanford and a Supreme Court advocate.
The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.
“The one trend that has emerged most clearly from the first three years of the Roberts court is a certain skepticism about facial challenges,” Paul D. Clement, who was until recently the solicitor general of the United States, said at a recent briefing at the United States Chamber of Commerce. That theme will be further explored this term in a case involving environmental regulations.
Religion and Free Speech
The Ten Commandments monument, donated by a private group, is in Pleasant Grove, Utah. The city has rejected a similar gift from followers of Summum, who want to erect a monument devoted to the “Seven Aphorisms” of their faith. More a case about free speech than religion, Pleasant Grove City v. Summum, No. 07-665, will turn on whether the Ten Commandments monument is speech by the government or the monument’s donors, and on whether parks are public forums.
When Cher appeared on the Billboard Music Awards in 2002, she used a four-letter word connoting sex. The next year, on the same show, banter between Paris Hilton and Nicole Richie included that word and another obscenity. In Federal Communications Commission v. Fox Television Stations, No. 07-582, the court will decide whether the F.C.C. has the power to punish broadcasters for airing “fleeting expletives.”
Environment
Federal courts in California have issued injunctions limiting the use of sonar in Navy training exercises off Southern California on the ground that it harms marine mammals. In Winter v. Natural Resources Defense Council, No. 07-1239, the Bush administration argues that the training is vital to national security and that the courts should not interfere.
In Summers v. Earth Island Institute, No. 07-463, the court will consider who has standing to challenge environmental regulations. Winter and Summers will be argued onWednesday, and decisions are expected by the spring.
In Entergy Corporation v. Environmental Protection Agency, No. 07-588, the court will consider whether the Clean Water Act authorizes the E.P.A. to use cost-benefit analysis.
Employment
After ruling in May that workers are protected from retaliation under two federal civil rights laws that do not explicitly provide such protection, the court will hear arguments on Wednesday in Crawford v. Nashville and Davidson County, No. 06-1595, about whether a law that does prohibit retaliation applies to people who cooperate in internal investigations.
In AT&T v. Hulteen, No. 07-543, the court will consider whether failing to give credit for pregnancy leaves in pension calculations amounts to employment discrimination.
Pre-emption
The first argument of the term will be in Altria Group v. Good, No. 07-562, on the issue of whether state consumer-fraud laws can be used to sue cigarette makers for saying their brands are low in tar and nicotine. Altria, whose Philip Morris unit makes Marlboro Lights, argues that the Federal Cigarette Labeling and Advertising Act should bar the suit because it pre-empts conflicting state laws in so many words and by implication. The solicitor general filed a brief arguing against implied pre-emption, but the brief did not address the express pre-emption argument.
Wyeth v. Levine, No. 06-1249, concerns only implied pre-emption and is perhaps the most important business case of the term. Wyeth, a drug company, seeks to overturn a Vermont jury award of more than $6 million to Diana Levine, a musician who lost much of her right arm in a medical disaster caused by the injection of a Wyeth anti-nausea drug. Wyeth argues that it cannot be sued because it had complied with federal safety standards.
Voting Rights
In Bartlett v. Strickland, No. 07-689, the court will decide whether a minority group must constitute a majority in an election district to claim the protection of Section 2 of the Voting Rights Act against having district lines redrawn in a way that dilutes the group’s ability to elect a representative of its choice.