Supreme Court Snapshot

The Supreme Court kicks off its new term on Monday, smack in the middle of a hotly contested presidential election in which the court itself is not just a campaign issue, but the subject of TV attack ads against both candidates for the first time anyone can remember. Perhaps in a sign that the justices have a sense of humor, they've scheduled oral arguments in FCC v. Fox Television for Election Day—a case that's all about the F-word. That case, you may recall, got its start during the live broadcasts of the 2002 and 2003 Billboard Music Awards, when Cher and Nicole Richie landed the network in hot water for a few fleeting expletives. (Richie: "Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple." And the always entertaining Cher, who, upon receiving her "artistic achievement award," said of her many critics, "So fuck 'em. I still have a job and they don't.")

As the FCC squares off against Fox, whose lawyer launched his argument in the lower court with his own string of profanity, oral arguments promise to be entertaining. The FCC is hoping the high court will restore some of its power to regulate the F-word during prime-time TV. The rest of the cases in this term's lineup are more consequential. None, however, is expected to land with the punch of Heller v. DC, the Second Amendment case from last term that undid 100 years of gun control law. Nonetheless, there's plenty of substance to look forward to—or fear.

The tobacco company Altria/Philip Morris has two cases on the calendar. One, involving the limits of a state court's power, is making its third appearance before the court from the state of Oregon, where the state's highest court has essentially taken Cher's attitude toward John Roberts and his brethren by refusing to overturn a multimillion dollar punitive damage award against the tobacco giant. The other involves lawsuits over whether the company's marketing of light cigarettes constituted fraud that could be challenged in state court. The court will also hear an important case involving retaliation in employment litigation and another involving pregnancy discrimination, which court watchers have dubbed "Ledbetter II," in reference to the case last year in which the court severely restricted womens' ability to sue for pay discrimination. And the court will hear its third major case in the past year involving the arcane but important issue of federal preemption. In this case, the court will decide whether regulations issued by the Food and Drug Administration can prevent injured citizens from suing drug companies for damages in state court.

As it stands the court hasn't taken on any major cases of the culture wars this term—no abortion cases or gay marriage challenges. But there is one free speech case that will be argued by a major culture warrior, Jay Sekulow. A veteran of religious freedom litigation, Sekulow represents the city of Pleasant Grove, Utah, which has been sued by a fringe religious group known as the Summum. The city denied the Summum the right to install a monument in a city park that outlines the group's "Seven Aphorisms," which it claims were inscribed by God on the first set of stone tablets given to Moses. The Ten Commandments are inscribed on another monument in this very park. The Summum argue that the city has violated their right to free speech by allowing one religious monument but not another, and a lower court sided with them. You'd think that Sekulow might be representing the Summum here, given his interest in religious free expression. He's working for the city out of concern that a decision in favor of the Summum would require governments around the country to remove all existing religious monuments, fearing that they otherwise would have to grant the Aphorisms (or other unusual religious monuments) equal space.
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