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Supreme Court at odds in key cases

By Bill Mears
CNN Washington Bureau

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WASHINGTON (CNN) -- The Supreme Court will likely begin its new term on Monday with the same fervor shown in the last term which ended amid rancor among the justices over the divisive issue of whether the war on terror deserves a measure of judicial restraint.

"There are a number of relatively big cases already," said Michael Gerhardt, a constitutional law expert at the William and Mary School of Law. "These and other upcoming cases will test some important characteristics of the [Chief Justice William H.] Rehnquist court, one I think still remains fractured along ideological lines."

On opening day, the nine justices will hear arguments on whether U.S. federal sentencing guidelines should be dismantled, amid wide confusion among lower courts over the constitutionality of the 18-year-old system.

Much of that confusion was spurred by the justices themselves last June when they struck down large parts of Washington state's sentencing guidelines. In the 5-4 ruling, the court concluded juries, not judges, must make the final decisions that would extend a defendant's sentence beyond a set limit for the particular crime for which the defendant was convicted.

Justice Sandra Day O'Connor a month later said she was "disgusted in how we dealt with the issue," concluding "it looks like a No. 10 earthquake to me."

She and other justices have predicted in harsh terms the chaos that would occur among judges, prosecutors, and defense attorneys if the federal sentencing guidelines were dismantled.

Federal judges currently consider two factors: severity of the crime and criminal history of the defendant. However, the prosecution can, at the sentencing phase, offer additional evidence of the victim's damages not presented at trial and evidence of the defendant's alleged crimes that were not part of the conviction.

Some legal analysts think the high court will follow the same path in the federal scheme it took in tossing out the state system.

"The odds are that the federal sentencing guidelines will be ruled unconstitutional," said Edward Lazarus, author of a book on the Supreme Court, "Closed Chambers."

"And then the question becomes, can the guidelines in general be maintained or will the guidelines be thrown out? And we then go back to the regime that existed before the guidelines under which judges had tremendous sentencing discretion. That's another big question in this case." (Lazarus column)

Executing teenage criminals

During the second week, the justices will hear arguments on whether the juvenile death penalty should be banned, in the belief "evolving standards of decency" makes it "cruel and unusual punishment" to execute those under 18 at the time of their crimes.

The court used a similar doctrine two years ago to end capital punishment for the mentally retarded.

The current case involves Christopher Simmons, convicted of the robbery-torture-murder of a Missouri woman. He was 17 years old at the time of the crime.

"I think there you're going to get a measure of what seems to have been over the last few years an increasing skepticism at the center of the court over the death penalty, over the way the process works in the lower courts and in the state courts and whether the machinery of death, as justice [Harry] Blackmun once called it, is really working the way we want it," said Lazarus, who predicted the court will rule the death penalty unconstitutional for juveniles.

One week before the new term, the court also accepted an appeal involving eminent domain which could determine whether cities could seize private property in order to give it to private developers. (Full story)

The docket is only about half-full so far. Justices may consider a congressional ban on a late-term abortion procedure its opponents label "partial-birth." A similar law was struck down earlier by the justices.

Other pending appeals involve continuing challenges to campaign finance reform; whether local governments can display the Ten Commandments or other religious symbols on public property; and whether seriously ill patients who use marijuana are protected from federal prosecution.

Political twists

The political season has intensified interest in several pending court challenges.

The House of Representatives this year passed laws stripping federal courts of the authority to decide the constitutionality of the federal Defense of Marriage Act, which prohibits the government from recognizing same-sex marriages.

The House also voted September 23 to keep courts out of debate over whether the Pledge of Allegiance violates religious freedom by including the phrase "under God." The Supreme Court in June dismissed the appeal of a California atheist on a technicality, ensuring the issue will percolate back up. (Full story)

Democrats claim Republicans are exploiting the issue for political purposes, by trying to strike down the power of judicial review, a bedrock principle giving the Supreme Court the ultimate say in constitutional matters.

"Two months ago, some assured us that court-stripping efforts would stop once they [Republican leaders] got what they wanted on the Defense of Marriage Act," said Rep. Nancy Pelosi, House Democratic leader. "There is no pretense that this will end. What is next? Voting rights? Laws that prohibit racial discrimination? Civil liberties? Our rights to privacy?"

The justices also will continue their examination of how law enforcement treats criminal suspects.

One case questions when drug-sniffing dogs can be used to search houses and vehicles. Another case examines the methods and lengths of detention for suspect while their premises are being searched. A California woman pulled from her bed claims she was unlawfully held at gunpoint, handcuffed for hours and illegally questioned on the floor of her garage while police went through her home, seeking illegal weapons and signs of gang activity.

In its last term, the court for the most part upheld the power of law enforcement on search and seizure issues.

Current pending cases on issues with potential terrorism implications include:

  • How long illegal immigrants facing deportation can be detained.
  • Procedures for military tribunals of suspected terrorists and fighters captured in Afghanistan, Iraq, and elsewhere.
  • Appeals by "enemy combatants" who claim the government is dragging its feet in giving them time in court.
  • The court will mark an unofficial milestone: a whole decade without any changes to the bench. It is uncertain whether the November elections will give any justices pause to consider retirement in coming months.


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