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Supreme Court's new slate half-full

WASHINGTON -- Big business and foreign prisoners have high hopes for the Supreme Court term that starts today.

Business wants protection from lawsuits. Prisoners want freedom.

The court is in the middle, divided along lines that defy simple partisan calculations and led by a chief who's starting his second full year on the job.

The 43 cases accepted for argument so far are about half the total that the court is likely to con-sider before the term ends in June. Some potential high-profile controversies, such as Washington's gun ban and Louisiana's death penalty for child rapists, could ripen later this year.

"There will be a lot more coming," predicted Lisa Brown, the executive director of the American Constitutional Society.

Still, Chief Justice John G. Roberts starts his second full year on the job certain of some things.

He knows that two cases stand out. One involves corporate liability. One involves Guantánamo Bay prisoners.

Roberts also knows that he leads a closely divided court, which has defied his stated intention of forging greater unanimity. One-third of the court's decisions last term were decided on a 5-4 vote.

"It was a record number, at least in modern memory," Georgetown University law professor Susan Low Bloch said. "There were also a record number of dissents announced from the bench."

Roberts knows, too, that even though he's the chief, Justice Anthony Kennedy remains the court's linchpin. Kennedy was in the majority in every one of last year's 5-4 decisions. Overall, he was in the majority 97 percent of the time last term.

The 52-year-old Roberts knows more about judicial vulnerabilities after a seizure he had during his summer vacation. Roberts has recovered, but the episode highlighted how unexpected illness can quickly upset a court in which one justice is 86, three others are older than 70 and one has confronted colon cancer.

In public, all the justices appear healthy. Several spent the summer teaching overseas. One, Justice Clarence Thomas, has been preparing for the publication today of his memoir, "My Grandfather's Son."

When it comes to court kibitzing, nothing may surpass the hearing Oct. 9 in a corporate liability case, Stoneridge Investment Partners v. Scientific- Atlanta. Nearly 30 groups have weighed in with amicus briefs, a number more commonly found around hot-button social controversies such as abortion.

"It's only a little bit of hyper-bole to call this case security law's Roe v. Wade," said Georgetown University law professor Donald Langevoort. "It's the biggest security law case in a dec-ade."

The case pits investors against companies. The outcome will determine, for instance, whether investors might sue an accounting firm for contributing to the misdeeds of a company such as Enron.

Scientific-Atlanta makes set-top boxes for televisions. The company allegedly sold the boxes at an inflated price to Charter Communications. Scientific-Atlanta then allegedly paid the extra money back to Charter in the form of higher ad rates.

Investors sued Charter. They also sued Scientific-Atlanta, but the company claims it can't be sued for securities fraud because it didn't directly deceive or manipulate the market. Investors retort that they need to be able to confront the associates of corporate bad actors.

"Scandals which have resulted in the spectacular implosion of some of Wall Street's biggest names have one thing in common: the degree to which the fraud could never have been accomplished but for the active, purposeful and intentional participation of third parties," the Pennsylvania Public School Employees' Retirement System argued in one brief.

The Bush administration is siding with the corporations, and the Roberts court is known as business-friendly. The U.S. Chamber of Commerce, which has filed an amicus brief siding with Scientific-Atlanta, won 13 out of the 15 cases in which it filed amicus briefs last term. So far this term, according to a tally by veteran Washington lawyer Tom Goldstein's ScotusBlog, roughly half the cases being considered deal with business.

"The court's docket has increasingly been taken up with important commercial cases," Goldstein said.

Lakhdar Boumediene's case matters for other reasons. It's the latest in a string of challenges to the Bush's administration's treatment of war-on-terrorism defendants.

An Algerian native, Boumediene has been imprisoned for five years without facing criminal charges. The Bush administration considers him an enemy combatant. He says he's innocent. He and fellow Guantánamo Bay prisoners want the right to challenge their open-ended incarcerations through writs of habeas corpus.

The Bush administration says the Guantánamo detainees lack that right and that, in any event, Congress stripped foreign prisoners of any potential habeas corpus claims with a 2006 law. Officials refuse to give the prisoners key details relating to their detentions, such as the names of their accusers.

"But I do not know if this person is Bosnian, Indian or whatever," prisoner Ait Idir protested at a tribunal hearing. "If you tell me the name, then I can respond and defend myself against this accusation."

"We are asking you the questions," the tribunal president replied, according to the transcript.

A date for the oral argument hasn't been set, but nearly two dozen amicus briefs already have been filed.

Bee Washington Bureau reporter Michael Doyle can be reached at mdoyle@mcclatchydc.com or 202-383-0006.

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