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Sunday, October 03, 2004 - Page updated at 12:00 A.M.
High Court's session promises more drama
By Gina Holland
The death penalty, free speech and prison sentences are back on the agenda, along with new topics such as medical marijuana and out-of-state wine purchases, both likely to produce disagreement.
Many of the biggest cases last session came down to 5-4 votes, and some justices on the losing end offered harshly worded minority opinions.
Justice Sandra Day O'Connor predicted a disastrous impact from a June ruling limiting judges' roles in sentencing convicted criminals. "The court ignores the havoc it is about to wreak on trial courts across the country," she warned in what turned out to be a prescient statement.
The ruling struck down a Washington state sentencing system and led judges across the country to invalidate the similar federal system. Some federal judges started reducing sentences, and prosecutors changed the way they handle cases, putting more information in indictments and revising the way plea bargains are done.
Justices agreed over the summer to hear arguments on the first day of the nine-month term in two appeals that will determine if the federal sentencing system violated a defendant's Sixth Amendment right to a jury trial.
Justices also were divided 5-4 in a major test last term of the government's power to control speech. In this case, which upheld major parts of a campaign-finance law, Justice Antonin Scalia complained that his colleagues caused a tragedy: "This is a sad day for the freedom of speech."
Washington lawyer Erik Jaffe, a former Supreme Court clerk, said strong opinions rarely produce long-standing animosity.
"They get annoyed, frustrated or mad or whatever you see expressed in critically worded opinions. Then they get over it and go to the next case," he said.
The Supreme Court in a typical term hears about 80 appeals, a fraction of the nearly 10,000 the justices are asked to consider.
A case sure to elicit strong opinions will be argued this month when justices are asked to rule on the constitutionality of executing killers who committed their crimes when they were juveniles.
The four-member liberal wing Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer criticized their colleagues two years ago for being unwilling to ban what they called the "shameful practice" of executing juveniles.
Those four were outvoted in a major death-penalty case in June, over whether to throw out more than 100 death sentences that were handed down by judges instead of juries. The court ruled earlier that juries, not judges, are final arbiters of the death penalty, but it refused to apply the decision to old cases.
The juvenile case will decide the fate of about 70 death-row inmates who killed when they were teenagers, including a Missouri man who was 17 when he helped push a woman off a railroad bridge in 1993. The United States is among only a few countries that allow execution for crimes committed before age 18.
Jesse Choper, a constitutional-law professor at the University of California, Berkeley, said the court, under the leadership of Chief Justice William Rehnquist, has been notable for taking on many tough issues.
"They certainly wade in where lots of others hesitate to tread," he said.
An appeal not yet at the court, but likely this fall, involves Oregon's assisted-suicide law. An appeals court has ruled that Attorney General John Ashcroft cannot hold doctors criminally liable for prescribing overdoses under the state's voter-approved law. The White House has until November to appeal the decision.
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