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  • WINTER 2009
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supreme court update

The Court, which began the 2008 – 2009 term with an unusually heavy argument schedule (14 cases in October) issued its first decision November 12 and its second a month later. Both were decided by 5-4 margins, with Justice Kennedy employing his familiar swing vote in each, once for the conservatives and once for the liberals.

In its November decision, the Court sided against a coalition of conservation organizations and in favor of the U.S. Navy, which was seeking to overturn certain restrictions on the use of sonar during antisubmarine training off the southern California coast.

Active sonar involves sending a pulse of sound underwater and then listening for the echo that is created when it strikes another submerged object. In this case, the conservation groups contended that this kind of sonar training needlessly kills or injures thousands of whales and dolphins which must rely upon their own natural sonar techniques to navigate. The U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction requiring the Navy to limit its peacetime use of active sonar in six specific ways, including four that the Navy believed it could safely abide by and two that it found objectionable.

The Navy asked the Court to strike down the requirements that it: (1) shut down active sonar when a marine mammal is spotted within 2,200 yards of a vessel, and (2) power down sonar by 6 decibels during conditions known as “surface ducting” (in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water).

A highly fractured Court sided with the Navy and struck down those two particular restrictions. Writing for the Court, Chief Justice Roberts wrote for a conservative majority (consisting of himself and Justices Scalia, Kennedy, Thomas, and Alito) that the Court needed to balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences. He then noted that on the one hand there has been no documented case of sonar-related injury to marine mammals, and that on the other the ability to operate sonar is a “highly perishable skill” that must be repeatedly practiced under realistic conditions.

In this case, he wrote, the environmental interests "are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.''

On the other hand, in the Court’s December 15 decision, perennial switch-hitter Justice Kennedy swung with the liberals to form a five-justice liberal majority consisting of himself and Justices Souter, Ginsburg, Breyer, and Stevens (who authored the majority opinion). In this case, Altria, the corporate owners of Philip Morris, asked the Supreme Court to review a federal court of appeals’ ruling that the plaintiffs could proceed with their lawsuit against them. The suit claimed that the company had violated the Maine Unfair Trade Practices Act by fraudulently advertising that their “light” cigarettes delivered less tar and nicotine than regular brands. Altria argued that this state-law claim was preempted by the Federal Cigarette Labeling and Advertising Act (the law that regulates the health warnings that must appear on cigarette packs).

The majority ruled otherwise, however, and has now given lower courts the green light to entertain suits that claim manufacturers of “light” cigarettes are fraudulently concealing their knowledge that smokers unconsciously negate the tar- and nicotine-reducing features of light cigarettes (by inhaling deeper and more frequently, covering filter ventilation holes with their lips or fingers, and holding the smoke in their lungs for a longer period of time).


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Legislative Update

Responding to the unexpectedly severe economic recession that started a month before his inauguration, President-elect Barack Obama has signaled his intention to push for what has been called “the biggest economic stimulus in U.S. history.”

The president-elect has urged Congress to act to stimulate the sick economy even before his new administration takes office, and said that even if Congress doesn’t, he will make the enactment of his own recovery plan his first priority upon taking office on January 20. News accounts report that Obama’s advisors have been burning the midnight oil as they work to complete a comprehensive economic recovery blueprint and get it to Congress in time for it to prepare legislation in January 2009.

The unprecedented scope of the Obama plan—some advisers have been reported as saying it could amount to as much as $1 trillion over two years—means that almost everyone will be affected.

Among the items to watch for as the new Administration’s legislation agenda develops over the next couple of months:

  • sharply increased spending for public works projects aimed at the nation’s infrastructure, including highway and bridge repairs and maintenance, new and upgraded schools, and energy-efficient government buildings;
  • significant spending on new environmentally friendly technologies;
  • emergency energy rebates to offset energy bills;
  • billions of dollars to prevent cuts in health, education, housing, and heating assistance or certain increases in property taxes, tolls or fees at the state and local level;
  • more money to train more teachers, expand early childhood education, and provide more college tuition aid;
  • an infusion of cash to ease gaps in health care (including up to $100 billion to subsidize the states’ growing Medicaid caseloads of the poor) and to modernize health record keeping; and
  • hundreds of billions of dollars in tax relief for low-wage and middle-class workers.


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Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is disseminated three times yearly (fall, winter, spring) by the American Bar Association Standing Committee on Public Education.

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