Preview of the October 2004 Term

Undoubtedly the most watched case in the coming Term will be Roper v. Simmons, in which the Court will revisit the issue of execution of teenage murderers, or to be more precise, persons who were juveniles at the time they committed the crime. The justices have already banned execution of criminals under 16 under the general principle that governs all crime by juveniles, namely, that they may not know the difference between right and wrong. In Stanford v. Kentucky (1989), however, they refused to extend that ban to all juveniles, saying that a national consensus on the issue had not yet emerged, and in its absence the Court would defer to state policies. Since the Court allowed the resumption of executions in 1976, 22 people have been put to death for crimes committed as minors.  More than half were in Texas, and most of the rest were in Virginia and Oklahoma.

Last year, however, the Missouri Supreme Court ruled that executing anyone under 18 would be cruel and unusual punishment.  The state court said it was not following the Court's 1989 ruling, because the judges, in a 4-3 vote, said the times had changed since Stanford. Judge Laura Denvir Smith said that a consensus had developed in the intervening years against executing juveniles. One could also infer an argument opposing such executions from the Supreme Court's 2002 ruling in Atkins v. Virginia barring the execution of the mentally retarded.

There will be enormous interest in the case not only in the United States, but also in Europe where the death penalty has been abolished almost completely.  A broad array of people including Jimmy Carter, Mikhail Gorbachev, the American Medical Association and the U.S. Conference of Catholic Bishops have all urged the high court to find it unconstitutional to execute people for the crimes they committed before turning eighteen.

So far four justices -- Stevens, Souter, Ginsburg and Breyer -- have said that imposing the death penalty for juvenile crimes is "inconsistent with evolving standards of decency in a civilized society." The key votes will be, as usual, O'Connor and Kennedy.

If juvenile executions will grab the headlines, the most important criminal procedure cases the Court will hear are the two questioning the reach of the Blakely decision.  In the confusion caused by the decision (see above), federal district and appeals courts reached a variety of opinions on just what Blakely actually meant. The Justice Department, with literally thousands of cases possibly affected, asked the Court for an early hearing to clarify what it had meant in terms of federal sentencing guidelines.

The justices responded quickly, and in their summer recess agreed to take two cases, United States v. Booker and United States v. Fanfan, and set up an expedited briefing schedule for counsel in the cases.  The Court will hear oral argument on the first Monday in October, the traditional opening day of the Fall Term. The Court's prompt response was welcomed by both prosecutors and defense attorneys as a necessary step to end the disarray now prevailing in federal courts.  An expedited opinion, perhaps as early as December, is likely.

In a rather unusual case, the Court agreed to review whether an arrest is valid if police later change their theory for making it. Jerome Alford sued two Washington state troopers for false arrest after he was jailed overnight for tape recording his conversations with them during a traffic stop. The officers told him that he was under arrest for violating the state's Privacy Act.  When they learned that the law did not apply to conversations with police officers, the troopers claimed that they had probable cause to arrest Alford on suspicion of impersonating a police officer, since he had police equipment and headlights.  The lower courts rejected that argument, saying the arrest could not stand because the second charge was not "closely related" to the original one.  In Devenpeck v. Alford, the Court will be asked to resolve a dispute in lower courts over exactly what the "closely related" doctrine means. The Court will also determine if a criminal conviction in a foreign court can be used as the basis for prosecution in the United States under a law that bars firearm use by felons (Small v. United States).

A major Commerce Clause case will test how far state liquor laws can go.  A number of states have statutes that restrict the interstate shipment of wine directly to consumers, requiring the beverage to go through a licensed retail outlet. They do, however, allow direct shipment by in-state wineries. Lower courts have split on this issue, and the Court granted cert in a trio of cases involving restrictive laws from New York (Swedenburg v. Kelly) and Michigan (Granholm v. Heald and Michigan Beer and Wine Wholesalers Association v. Heald). The Court has asked the parties to address the specific question of whether a state's regulatory scheme that permits in-state wineries to ship alcohol directly to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in the light of Section 2 of the 21st Amendment.  That section, in the repeal of prohibition, allowed states to ban the importation of alcohol.  The original meaning of that section, however, was to allow dry states to remain so.  These cases deal with states that are not dry but are discriminating against out-of-state wineries.

The Court will also hear a First Amendment issue in two cases coming from the livestock industry, Veneman v. Livestock Marketing Association and Nebraska Cattlemen Inc. v. Livestock Marketing Association. The Association promotes beef with a national program, including the slogan "Beef: It's What's for Dinner," funded through a government-imposed fee. Beef ranchers who disagree with the marketing strategy objected to the fee, and claim that being forced to pay for speech they disagree with is a violation of the First Amendment rights.

A suit by an Indian tribe will also be docket.  In Cherokee Nation of Oklahoma v. Thompson, the Court will be asked to decide whether the federal government breached its contract with the tribe under the Indian Self-Determination and Education Assistance Act.

Attorney General John Ashcroft's continuing crusade to overturn state laws that he does not agree with will come to the high court in Ashcroft v. Raich. Already rebuffed in the lower courts, and implicitly by the high court, for his attempts to punish doctors who prescribe marijuana for patients with certain severe illnesses (see above), this time the attorney general is trying to overturn a decision he lost after announcing he would punish people who used the weed on physician's recommendation.  The Ninth Circuit ruled that prosecuting medical marijuana users under the federal Controlled Substances Act is unconstitutional if the marijuana is not sold, transported across state lines, or used for non-medicinal purposes.  The two women who sued Ashcroft to prevent him from prosecuting them are seriously ill, and Angel Reich claims that she was in constant pain and partially paralyzed until she began using the weed.

In every state lawyers handle certain types of suits on a contingency basis, meaning that if they lose the case there is no fee, and if they win, they will get a certain portion of the settlement, as much as one-third, for a fee. That portion of an award that goes to the lawyer is, of course, taxable income for the attorney. But a long simmering issue in the lower courts, whether the client should also have to pay taxes on the contingent fee, will be heard by the high court in three cases consolidated into one, Freeman v. Commissioner of Internal Revenue.

In nearly a dozen cases in recent years the justices have denied cert in these cases, because the taxpayers lost and the solicitor general urged them not to take the appeal.  But in recent years it has been the government losing, and now the IRS is eager to have the matter taken to the high court, hoping that a definitive judgment will be in its favor.  The issue, from both attorney and client view, is that the amount ought not to be taxed twice, once as part of the settlement by the client and then again by the lawyer.  Since the client does not really receive that part already assigned to the lawyer, she ought not to pay money on it.  The government, on the other hand, claims that this money ought to be taxed.  It is like other income to the client, and because it is paid out does not negate the taxpayer's liability.

For the most part the Court has tended not to rule on intelligence matters, and in a famous case, Snepp v. United States (1980), enforced the CIA's rule that former agents may not write books without first having the contents cleared by it. Next Term, however, in Tenet v. Doe, the Court will review a lower court's decision that permitted an alleged husband-wife Cold War spy team to sue the CIA for allegedly breaking a promise to provide them financial and personal security for life after they carried out espionage against the former Soviet Union.  At issue is a 130-year old Court ruling in a Civil War espionage case, Totten v. United States, that said courts cannot hear cases in disputes involving spying contracts, because it might do harm to make public the details of the enterprise and embarrass the government.

Normally such cases have been dismissed by the lower courts at the request of the Agency, but here the district court ruled that since the espionage part of the contract was over, the couple, known as John and Jane Doe, could sue to enforce their claim that the CIA promised, after resettling the couple in the United States, to make up the man's salary with a stipend if he lost his job.  Solicitor General Olsen urged the Court to take the case, so that it could resolve the matter definitively.

One case that the Court did not take involved the Second Amendment. The justices denied cert in Silveira v. Lockyer, a ruling by Judge Stephen Reinhardt of the Ninth Circuit that the Constitution does not give individuals the right to bear arms.  Although the Bush Justice Department notified the Court two terms ago that it considers the right to bear arms a personal right, the justices ignored that information, and until faced with a case that they cannot ignore, will prefer to stay out of this quagmire.

The Court granted cert in several other cases, including a major bankruptcy case, but the majority of its work in the October 2004 Term will be determined after the Court resumes sitting in the fall.

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