Today is the traditional beginning of the U.S. Supreme Court’s 2008-2009 term. Most of the big cases, of course will not be decided until June of next year. But I’ll point to a couple of cases that have caught my eye to watch.
Nipple Watch: The FCC has a policy of generally not prosecuting incidents of “fleeting” profanity or other kinds of indecency, which typically take place in live broadcasts. But in recent years, more fines and non-monetary sanctions have come down — not, as the most complaints are still filed for, profanity used by wide receivers during live NFL broadcasts — for things like the use of profanity by Nicole Richie or the infamous “wardrobe malfunction.” FCC v. Fox Television Stations challenges this new policy interpretation as arbitrary and capricious.
Guantanamo Prisoners: Ashcroft v. Iqbal asks whether high-ranking Administration officials are entitled to qualified immunity for what is politely recalled “mistreatment” of prisoners in Guantanamo Bay as part of a civil rights lawsuit for damages. I have a sneaking suspicion that the answer will be “yes.” It kind of has to be. Also watch a sort of companion case to Iqbal, Al-Marri v. Pucciarelli. This is a habeas corpus case concerning a Qatari national who had a Green Card who was arrested in Peoria, Illinois in 2003 and has been held in Guantanamo ever since as an “enemy combatant.”
Voting Rights: Certiorari has not yet been granted in Northwest Austin Municipal Utility District v. Mukasey but I would expect it to. It is a more or less straight and direct challenge to the constitutionality of certain provisions of the Voting Rights Act. If the Court decides that Congress exceeded its power, states and local governments will have greater discretion to run elections as they see fit.
John Paul Stevens is 88 years old. Ruth Bader Ginsburg is 75. Antonin Scalia is 72. So is Anthony Kennedy. Stephen Breyer is 70. David Souter is 69. The election is twenty-nine days away.
