By Ann W. Parks

Professors Susan Low Bloch, Martin Lederman, Lisa Heinzerling, James Forman and David Vladeck before a roomful of reporters at the Supreme Court Institute's annual press briefing. .

A new presidential administration is on the horizon, but Fall 2008 will be business as usual for the Supreme Court — and five distinguished law professors from Georgetown Law gathered in Gewirz Student Center recently to help reporters from national and local news outlets make sense of it all. It was the Supreme Court Institute’s Annual Press Briefing, where experts in the areas of First Amendment, environmental, criminal, and food and drug law gave journalists an idea of what they might expect in the High Court’s October 2008 term.

Twenty-three reporters — from organizations including ABC, CBS and NBC News; The Wall Street Journal, The New York Times, USA Today, the Associated Press, Bloomberg and Reuters — attended the September 22 event.

Three days earlier, lawyers for a man named Ali Al-Marri petitioned the Supreme Court for review of a case challenging his detention as an enemy combatant. The Fourth Circuit concluded in July that if certain allegations concerning Al-Marri were true, the president did have the power to detain him as an enemy combatant in the military, as opposed to the criminal, system — even though Al-Marri was lawfully residing in the United States at the time of his arrest.

“It could be the blockbuster case of the term, if the Court were to grant it,” said Professor Martin Lederman, who teaches constitutional law and an executive branch lawyering seminar at the Law Center. Lederman also discussed two potentially significant First Amendment cases slated to be heard by the court: FCC v. Fox Television Stations — which examines whether the FCC may change its obscenity policy to prohibit the use of “fleeting” (unrepeated) expletives on network television — and Pleasant Grove City v. Summum, which asks whether a city may deny a church’s request to donate a monument to its “Seven Aphorisms” for display in a public park. (Lederman is one of a group of lawyers representing the respondent church).

Professor James Forman, a former public defender, looked at three Fourth Amendment exclusionary rule cases before the Court, all relating to various police searches. And Professor Susan Low Bloch, who moderated the day’s panel, discussed the likelihood of a rehearing in Kennedy v. Louisiana, decided in June. In that case, the Supreme Court held that the death penalty was an unconstitutional punishment for child rape but failed to include in its analysis a 2006 military statute authorizing death for this particular crime.  

Georgetown Law Professor Lisa Heinzerling examined four environmental law cases, including Winter v. Natural Resources Defense Counsel. The case was initially brought by environmental groups concerned that the Navy’s use of sonar in training exercises off the coast of California will adversely affect marine life.

Heinzerling noted at that its highest range, the noise of the sonar is “about like a spaceship blasting off.” Still, she noted, plaintiffs bringing a challenge under the National Environmental Policy Act have historically had a 0-15 record before the Supreme Court — not very good odds. “It’s the military versus the whales,” she said. “It’s not looking good for the plaintiffs at this point.”

Sea change

Professor David Vladeck examined two cases in the area of federal preemption law, one of which could be the biggest case before the Court this term from a business standpoint. In Wyeth v. Levine, a Vermont jury awarded nearly $7 million to a musician who lost her arm to gangrene after the drug Phenergan was accidentally inserted into an artery rather than a vein. The case raises questions as to whether state law claims concerning drug labeling warnings should be preempted by federal law — since, the manufacturer contends, it is the federal Food and Drug Administration who controls what goes on a drug label.

But from the plaintiff’s point of view, the FDA rules permit and encourage labeling changes. “The outright claim that the plaintiffs are going to make, essentially, is that this would be a ‘sea change’ in the way we do products liability law,” said Vladeck, who filed an amicus brief on behalf of former FDA commissioners in support of Diane Levine. “I think it will be an interesting case; it’s hard to know what the court will do.”

A Webcast of the event is available at http://www.law.georgetown.edu/webcast/eventDetail.cfm?eventID=619