Bench warmers


Today begins the third full term of a U.S. Supreme Court transformed by President Bush’s appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The cases accepted for review so far include one that will force the justices, whose average age is 68, to confront the coarseness of 21st century popular culture. The question is whether the Federal Communications Commission exceeded its authority by deciding to punish dirty words that escape from the lips of celebrities on television.

The justices also will rule on whether a Muslim man imprisoned and allegedly abused after 9/11 can sue a former U.S. attorney general; whether a federal judge in Los Angeles exceeded her authority when she ordered the Navy to limit testing of underwater sonar systems that cause hearing loss in whales and dolphins; and whether a Utah community that displays the Ten Commandments in a public park must also make room for the Seven Aphorisms of an obscure religion. (Aphorism No. 3: “Nothing rests; everything moves; everything vibrates.”)

The court also will hear a case pitting the Food and Drug Administration’s authority to approve drugs against the asserted right of patients injured by medical errors to sue pharmaceutical companies in state court. The case involves a guitar player whose arm had to be amputated after she was treated with an anti-nausea medicine.


These are important cases, but they pale in significance to those heard by the court in the 2007 term that ended this summer. In that term, the court outlawed the death penalty for the rape of a child, ruled that prisoners at Guantanamo Bay could challenge their confinement in court and delved into Colonial history to decide that the 2nd Amendment protected a personal right to keep and bear arms.

The importance of some of this term’s cases is also lessened because they involve not the meaning of the Constitution, on which the court has the final say, but the interpretation of federal statutes -- which Congress can rewrite if it disagrees with the court’s understanding of its handiwork. That’s true of both the defective medicine case and the dispute over the FCC’s authority to punish “fleeting expletives” such as that uttered by Bono during a televised awards show. The latter sounds like a 1st Amendment case, but its outcome may turn instead on whether the agency abused its discretion under the Administrative Procedure Act.

That the court’s docket -- so far -- is short on politically charged cases may make it easier to achieve the consensus celebrated by the chief justice. The court made some progress toward that ideal last term, despite some high-profile 5-4 decisions. A continued emphasis on consensus and civility would give more guidance to lower courts. It also would remind the next president -- who could appoint as many as three new justices in his first term -- that the credibility of the court depends on the perception that justices aren’t just politicians in robes.