Posted on Sun, Sep. 30, 2007
last updated: September 30, 2007 12:35:52 PM
WASHINGTON — Big business and foreign prisoners have high hopes for the Supreme Court term that starts Monday.
Business wants protection from lawsuits. Prisoners want freedom. The court is in the middle, divided along lines that defy simple partisan calculations and led by a chief who's still finding his way.
Wild cards may yet shape the 2007-08 term. The 43 cases accepted for argument so far are only about half the total that the court is likely to consider before the term ends next June. Some potential high-profile controversies, such as Washington's gun ban and Louisiana's death penalty for child rapists, could ripen later this year.
"There will be a lot more coming," predicted Lisa Brown, the executive director of the American Constitutional Society.
Still, Chief Justice John G. Roberts starts his second full year on the job certain of some things.
He knows that two cases already stand out. One involves corporate liability. One involves Guantanamo Bay prisoners. Both have attracted big guns.
Roberts also knows that he leads a closely divided court, which has defied his stated intention of forging greater unanimity. One-third of the court's decisions last term came on the narrowest possible margin, 5-4.
"It was a record number, at least in modern memory," Georgetown University law professor Susan Low Bloch noted. "There were also a record number of dissents announced from the bench."
Roberts knows, too, that although he's the chief, Justice Anthony Kennedy remains the court's linchpin. Kennedy was in the majority in every one of last year's 5-4 decisions. Overall, he was in the majority 97 percent of the time last term.
Not least, the 52-year-old Roberts knows more about judicial vulnerabilities, after a still-unexplained seizure he had during his summer vacation. Roberts has recovered, but the episode highlighted how unexpected ill health can quickly upset a court in which one justice is 86, three others are older than 70 and one already has confronted colon cancer.
In public, all the justices appear healthy. Several spent the summer teaching overseas. One, Justice Clarence Thomas, has been preparing for the publication Monday of his memoir, "My Grandfather's Son."
All will convene on their fabled first Monday of October, starting with a dispute over Washington state's "blanket" political primary. It allows primary candidates to identify their party preferences on the ballot, even if they aren't party members. Consequently, the two top vote-getters facing each other in the general election might belong to the same party.
Political junkies are closely watching Washington State Grange v. Washington State Republican Party, and the California Democratic Party has filed a brief supporting the challenge to Washington's primary. It resembles California's blanket primary, which the Supreme Court struck down in 2000.
When it comes to court kibitzing, nothing may surpass the hearing Oct. 9 in a corporate liability case, Stoneridge Investment Partners v. Scientific-Atlanta. Nearly 30 outside groups have weighed in with amicus briefs, a number more commonly found around hot-button social controversies such as abortion.
"It's only a little bit of hyperbole to call this case security law's Roe v. Wade," Georgetown University law professor Donald Langevoort said. "It's the biggest security law case in a decade."
The case pits investors against companies. The outcome will determine, for instance, whether investors might sue an accounting firm for contributing to the misdeeds of a company such as Enron.
Scientific-Atlanta makes set-top boxes for televisions. The company allegedly sold the boxes at an inflated price to Charter Communications. Scientific-Atlanta then allegedly paid the extra money back to Charter in the form of higher ad rates. Charter used this $17 million in spurious ad revenue to inflate its profits.
Investors sued Charter. They also sued Scientific-Atlanta, but the company claims it can't be sued for securities fraud because it didn't directly deceive or manipulate the market. Investors retort that they need to be able to confront the associates of corporate bad actors.
"Scandals which have resulted in the spectacular implosion of some of Wall Street's biggest names have one thing in common; the degree to which the fraud could never have been accomplished but for the active, purposeful and intentional participation of third parties," the Pennsylvania Public School Employees' Retirement System argued in one brief.
The Bush administration is siding with the corporations, and the Roberts court is known as a business-friendly forum. The Chamber of Commerce, which has filed an amicus brief siding with Scientific-Atlanta, won 13 out of the 15 cases in which it filed amicus briefs last term. So far this term, according to a tally by veteran Washington lawyer Tom Goldstein's ScotusBlog, roughly half the cases being considered deal with business.
"The court's docket has increasingly been taken up with important commercial cases," Goldstein said.
Lakhdar Boumediene's case matters for other reasons. It's the latest in a string of challenges to the Bush's administration handling of war-on-terrorism defendants.
An Algerian native, Boumediene has been imprisoned for five years without facing criminal charges. The Bush administration considers him an enemy combatant. He says he's innocent. He and fellow Guantanamo Bay prisoners want the right to challenge their open-ended incarcerations through writs of habeas corpus.
The Bush administration says the Guantanamo detainees lack that right and that, in any event, Congress stripped foreign prisoners of any potential habeas corpus claims with a 2006 law. Officials refuse to give the prisoners key details relating to their detentions, such as the names of their accusers.
"But I do not know if this person is Bosnian, Indian or whatever," prisoner Ait Idir protested at a tribunal hearing. "If you tell me the name, then I can respond and defend myself against this accusation."
"We are asking you the questions," the tribunal president replied, according to the transcript.
In a rare move, the high court refused at first to hear the prisoner's appeal, then changed its mind last June. A date for the oral argument hasn't been set, but nearly two dozen amicus briefs already have been filed.
McClatchy Newspapers 2007