WASHINGTON – The Supreme Court is doing its best to stay out of the spotlight in the final days of the presidential campaign and while the other two branches of government struggle to deal with turmoil in the financial markets.
The justices open their new term Monday with no cases on abortion, race or other social issues that might split the court and the nation.
The most entertaining case of the term — involving celebrities' use of profanity on live television — will be argued on Election Day, Nov. 4., when attention arguably will be focused elsewhere.
"It's a little light on blockbuster cases," said former Attorney General Richard Thornburgh. "But one never knows ... when those will crop up."
Among the biggest cases so far:
—Efforts by drug makers and tobacco companies to limit consumer lawsuits under state law.
—A battle between the Navy and environmentalists over the use of sonar in training exercises, potentially harming marine mammals.
—A suit against former Attorney General John Ashcroft and FBI Director Robert Mueller by a Pakistani man who claims he was badly treated after being rounded up following Sept. 11.
—Whether federal anti-discrimination laws cover people who allege they faced retaliation after cooperating with their employer's internal investigation.
—A third try at resolving a punitive damages award to a smoker's widow.
The court also will decide an array of criminal cases. Several explore the limits of police power to search and arrest people without warrants.
"There are several cases that could end up having great significance in litigation — how are civil rights cases actually litigated, how are lab reports presented in criminal trials," said Erwin Chemerinsky, dean of the new University of California, Irvine's law school. "These cases could make a huge difference, but they are not of the magnitude of the Guantanamo cases or Heller," last term's landmark gun rights case.
The court has been very receptive in recent years to arguments that federal law trumps, or pre-empts, state regulation in a number of areas.
There is intense interest among business groups, state governments and consumer advocates in the cases involving suits over false advertising of cigarettes and the liability of the manufacturer of a drug that was improperly injected in a patient, with disastrous results.
Diana Levine, a musician from Vermont, won a $6.8 million judgment against drug maker Wyeth in state court after the injection of an anti-nausea drug led to the amputation of her arm. There is no dispute that the drug, which has been around for 50 years, is safe when administered properly or that there is a risk of gangrene if it is not.
The issue for the court is whether Wyeth could have issued stronger warnings about the risks without the approval of the Food and Drug Administration. The company says it would have needed FDA approval and that federal regulation leaves no role for the states. The Bush administration is on the company's side.
But Levine, backed by 47 states, says that state laws complement federal regulation and that before Bush took office, the FDA thought so, too.
In the tobacco case, Altria Group Inc. is fighting state suits over allegedly deceptive advertising of "light" and "low-tar" cigarettes.
By June, Supreme Court terms often look very different than they do at their start.
The court could rule on the constitutionality of a key provision of the Voting Rights Act and the president's authority to seize and detain people in the United States as enemy combatants, indefinitely and without facing criminal charges.
Perhaps the biggest news that could emerge from the court — other than deciding the outcome of the presidential election — would be the announcement of a retirement.
Every four years commentators write that the court hangs in the balance and that the upcoming election could decide the court's ideological direction for a generation. That wisdom — or is it a cliche? — is no less true in 2008.
Justice John Paul Stevens will turn 89 in December. Justice Ruth Bader Ginsburg is 75. Justices Antonin Scalia, Anthony Kennedy and Stephen Breyer are in their 70s. Justice David Souter, who heads home to New Hampshire each June and returns to Washington just in time for the new term, never has been a fan of life in the capital city.
Randy Barnett, a Georgetown University constitutional law professor, said the outcome of the election probably will play a big role in retirements, with Stevens and Ginsburg considered the most likely to step down soonest.
If McCain wins, Barnett said, "the liberals will stick it out as long as their health reasonably permits."
In an Obama presidency, "the odds are these justices will take the opportunity to retire," he said.
The upshot of such speculation is that McCain is more likely to have the chance to make the court more conservative, while Obama would be able to infuse the court with younger left-of-center justices without altering the balance of power.