Posted on Fri, May. 22, 2009
last updated: November 24, 2010 01:49:27 PM
WASHINGTON — Forget the abortion issue, for a moment. There's new legal terrain for the Supreme Court to explore that goes well beyond Roe v. Wade and the evergreen issues that line the campaign trail.
Some pending disputes already are known, including the 14 cases that are scheduled for Supreme Court consideration starting next October. None involves abortion, the traditional flash point for recent Supreme Court confirmation fights.
"The enormous focus on hot-button social issues tends to obscure the fact that you're not electing a president or member of the Senate," said Richard Friedman, an expert on Supreme Court history at the University of Michigan.
Dog fighting, for instance, is the unlikely center of an upcoming free-speech case called U.S. v. Stevens that the newly constituted court will consider next term.
Robert J. Stevens is a Pennsylvania man who was sentenced to 37 months in prison for selling dog-fighting videotapes. The tapes were undeniably brutal. One, an appellate court noted, "includes a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig." Still, skeptics question whether such depictions of animal cruelty justify the same speech restrictions as obscenity or incitement to violence.
"We disagree with the suggestion that the speech at issue here can appropriately be added to the extremely narrow class of speech that is unprotected" by the First Amendment, the 3rd U.S. Circuit Court of Appeals in Philadelphia concluded.
The yet-unnamed replacement for Justice David Souter and his or her colleagues also will determine whether life imprisonment for Florida minors constitutes cruel and unusual punishment. The revamped court will reconsider the fraud conviction of former media mogul Conrad Black. In addition, closely watched by big business, justices for the first time will examine the tighter accounting rules set by the 2002 Sarbanes-Oxley Act.
The work load will grow by the time the new justice takes office. Typically, the Supreme Court schedules about 75 cases for each term, which runs from the first Monday in October through the end of June.
Other kinds of conflicts are still percolating that could take years to reach the Supreme Court. Some of these over-the-horizon disputes are predictable, at least in broad outline.
For instance, a landmark 2008 ruling upholding an individual's Second Amendment right to own firearms left some key questions unanswered. One is what standard of review judges must apply when evaluating gun-control measures. A low bar would be simply to require that the law is reasonably related to a legitimate state interest. A much higher bar would require the law to be tailored narrowly to meet a compelling state interest.
"Since this case represents this court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field," Justice Antonin Scalia wrote for the majority in District of Columbia v. Heller.
Same-sex marriage, University of Pittsburgh law professor Arthur Hellman added, likewise is "inevitably on its way up."
If any federal court were to hold that the Constitution requires recognition of same-sex marriages, "the court would be very hard-pressed to deny review of that," Hellman said.
President Barack Obama's decision to reconstitute military tribunals and to seek indefinite detention of some terrorism suspects also almost certainly is destined for the Supreme Court, experts agree.
However, David Stras, a law professor at the University of Minnesota, suspected that the court was "slowing down" on that front because the Bush and Obama administrations have scaled back the post-9/11 anti-terrorism strategy.
Instead, business cases are more likely to pique the court's interest, as part of what appears to be a broad trend emerging in the Roberts court, Stras said.
The justices, for example, have started to take more cases involving arbitration or mediation.
"By deciding these cases even though they're not paid any attention to, the court is potentially affecting millions and millions of pieces of litigation that are going to be decided by arbitration," Stras said.
Then there are the potential disputes on the outer edge of predictability, such as those that involve technology or government efforts to combat global warming.
"A generation ago or even 10 years ago, these issues were not at all on the radar screen," Friedman said.
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