High Court's session promises more drama

By Gina Holland
The Associated Press

PETE SOUZA / KNIGHT RIDDER NEWSPAPERS Left to right, front row, Antonin Scalia, John Paul Stevens, William Rehnquist, Sandra Day O'Connor, Anthony Kennedy. Back row, Ruth Bader Ginsburg, David Souter, Clarence Thomas, Stephen Breyer.

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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.

To be reviewed Prison sentences: Are federal sentencing guidelines constitutional? Medical marijuana: May the government prosecute sick people who grow marijuana and use it on the advice of a doctor? Death penalty: Is it unconstitutionally cruel to execute juvenile killers? Land rights: When can local governments seize people's homes and businesses to be used for tax-producing projects like shopping malls? Immigration: May immigration officials deport someone to a country that has no government to accept them? And may authorities indefinitely imprison hundreds of Cuban immigrant criminals and other illegal foreigners with no country to accept them? Free speech: May the government require beef producers to pay fees that are used to promote the industry, even if the producers disagree with some of the marketing campaigns? Wine shipments: May states prevent consumers from buying wine by mail from out-of-state wineries? Prison segregation: May state prison officials separate inmates based on the prisoners' skin color? Title IX: Does the federal law best known for promoting women's athletics protect people who are punished after they complain about unlawful sex discrimination? Police searches: May police use drug-sniffing dogs to check stopped cars whose drivers have given police no particular reason to suspect illegal activity? Guns: May people convicted of crimes overseas be barred from owning a gun in the United States? The Associated Press

"Often the court draws back when it looks over the precipice, but I'm not sure they're going to pull back" on this case, said Chris Landau, a Washington, D.C., lawyer and former Supreme Court clerk. "They're not a timid court."

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.

Copyright © 2004 The Seattle Times Company

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