Against the backdrop of a tight presidential election that likely will shape its future, the Supreme Court goes back to work this week, facing cases on whether the government can forbid foul language on television, whether drug makers can be sued by injured patients and whether John Ashcroft can be held liable for the alleged mistreatment of Muslim immigrants after 9-11.
On Monday, the justices will meet behind closed doors to sift through more than 2,000 appeal petitions that have piled up over the summer. They are expected to announce Tuesday that they will hear a handful of those cases.
On Oct. 6, the court will begin hearing oral arguments. First up is a case that tests whether the makers of “light” and “low tar” cigarettes can be sued for allegedly seeking to fool smokers into thinking these cigarettes are safer.
The court has much at stake in who is elected president in November. On the major issues, such abortion, race, religion, the death penalty, gun rights, gay rights and presidential power, the justices have been sharply divided. The court regularly splits 5-4 on those issues, with Justice Anthony Kennedy casting the deciding vote.
The retirement of a single justice could tip the balance to the right or the left. At age 88, Justice John Paul Stevens is seen as likely to step down during the next president's term. A second of the liberal justices, Ruth Bader Ginsburg, is 75, and could be replaced by the next president, particularly if the newly elected chief executive serves eight years in the White House.
So far, the court does not have before it a hot-button case on abortion, race or religion, although that could change after new cases are added in coming weeks.
For consumers as well as corporations, the most far-reaching case to be heard this fall tests a patient's right to sue if he or she is hurt or even killed by a federally approved drug.
Bush administration lawyers have quietly pressed the theory that if a product is regulated by a federal agency, its regulations “pre-empt” or block lawsuits that set stricter standards. Not surprisingly, this approach has won the backing of manufacturers.
Product makers want “national, uniform standards,” said Robin Conrad, a lawyer for the U.S. Chamber of Commerce, not different rules set by states or juries. “This is the top priority of the business community,” she said.
It has been 30 years since the court last dealt with offensive language on TV and radio. Then, the court upheld a fine against a radio station for broadcasting George Carlin's “Seven Dirty Words” monologue.
Since then, television has changed fundamentally. Most Americans receive TV signals through cable or satellite signals, but the Federal Communications Commission retains the authority over broadcasters who use the airways and to forbid “any obscene, indecent or profane language.”
Two years ago, the FCC announced a crackdown on unscripted expletives and said it was prepared to levy big fines on broadcasters for violations. It cited several examples from entertainment industry award shows, which were broadcast live. When Cher won a Billboard Music career achievement award, she said it proved her critics wrong. “So, f--- 'em. I have a job and they don't,” she said.
Fox TV, which had broadcast the award show, sued, contending the crackdown was arbitrary and a free-speech violation. A U.S. appeals court in New York agreed and barred the FCC from enforcing its new policy. The court will hear FCC v. Fox TV on Nov. 4, Election Day.
The justices will also decide whether Ashcroft, the former attorney general, can be held liable for the arrest and alleged mistreatment of immigrants after the 2001 attacks. Bush administration lawyers say Ashcroft, the FBI director and other top officials are shielded from being sued by Muslim men who say they were picked up and roughed up.
Javaid Iqbal, a Pakistani native who lived on Long Island, was arrested on a charge of credit card fraud, but was sent to a maximum security wing of a jail in Brooklyn. He said he was subjected to daily “strip and bodily cavity searches.” Twice, he was handcuffed and taken into a room where officers kicked him in the stomach, punched him in the face and screamed he was a “terrorist” and a “Muslim killer.” Nine months later, he pleaded guilty to a fraud charge and was deported. He sued and alleged he was harassed and beaten because of religion and race.
In Ashcroft v. Iqbal, the administration's lawyers say the former attorney general did not know of or approve this mistreatment, and he should not be liable for it.