NYTimes Editorial: The Supreme Court's New Term

October 6, 2008
Editorial
The Supreme Court’s New Term
The Supreme Court begins its term on Monday, and the indications so far are that it could be a quiet year. There will be at least a few high-profile cases, on issues ranging from obscenity to church-state separation, but the swing vote of Justice Anthony Kennedy is likely to keep the court on a generally centrist path. The real excitement this fall is occurring on the outside — in a presidential race that could shape the court for years to come.

Historians will remember this as the Roberts Court’s fourth term, but as a practical matter it is likely to be another year of the Kennedy Court. Poised between a bloc of four liberal justices and four conservatives, Justice Kennedy — a moderate conservative — has for several years been able to decide most close cases.

This term’s docket includes Federal Communications Commission v. Fox Television Stations, a challenge by broadcasters to the F.C.C.’s policy on “fleeting expletives.” The commission, in a sharp reversal, started imposing large fines for television programming with brief profanities — like a Golden Globe awards show in which the singer Bono uttered a single offending word. A federal appeals court rightly struck down the policy, which seriously infringes on free speech. We hope the court sides with the broadcasters.

The court will also consider, in Pleasant Grove City v. Summum, whether a Utah municipality that allows a privately donated Ten Commandments monument to be displayed on public property must let another religion put up its own statue of similar size. The court should rule that the Constitution does not allow government to favor one religion over another.

The court’s conservatives have been on a campaign to close the courthouse door to people with legitimate legal claims. They have expanded a variety of doctrines to send wronged parties away empty-handed, including one known as “pre-emption.”

That issue is central to a case being argued on Monday, a challenge by Maine smokers to Philip Morris’s marketing of “light cigarettes” as safer than regular ones. The smokers say the marketing violated Maine’s consumer protection laws, but Philip Morris argues that they are pre-empted by federal law. We hope the court agrees with the Boston-based Court of Appeals for the First Circuit that the smokers’ suit can go forward.

The court is still accepting cases for the term, and it could add major ones, including a challenge to the constitutionality of the Voting Rights Act, or the case of Ali Saleh Kahlah al-Marri, which raises the question of whether the president can order someone lawfully in the United States held indefinitely as an enemy combatant.

The same day the court hears arguments in the “fleeting expletives” case next month, Nov. 4, Americans will be voting for a new president. John McCain is promising to nominate more archconservatives, which could tip the court far to the right. Barack Obama would appoint justices who are more liberal.

The election’s outcome is likely to have an enormous impact on questions like the right to abortion, the wall between church and state, and the power of the president to detain Americans. Since several justices could depart in the next four years, this could be the most important election for the court in many decades.