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Law-and-order issues top Supreme Court docket

  • Story Highlights
  • Lethal injection tops docket for Supreme Court's fall term
  • Justice Anthony Kennedy expected to wield influence as swing vote
  • Court has taken a definite turn to the right
  • Justices' decisions likely to provide election year fodder
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By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The Supreme Court is wasting little time seeing just how far a newly confident conservative majority can affect a range of law-and-order issues.

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The Supreme Court's fall docket is loaded with law-and-order issues, including lethal injection.

From terrorism to lethal injection, cocaine sentencing to child pornography, the nine justices will tackle a socially and politically contentious docket in the weeks ahead.

Their work is likely to provide fodder for the coming election season.

The high court begins its new term this week, on the traditional "First Monday in October."

Also in the high court's sights this term are a local handgun ban, the CIA's "extraordinary rendition" program for interrogating terror suspects, and the death penalty for child rapists.

Thomas Goldstein, a private appellate attorney who runs the Web site SCOTUS Blog, will be watching closely.

"The term could get even more interesting here, at the very beginning," he said, "and it will chart a course for whether the court is ideologically purely conservative or more balanced." Video Watch what this term will say about the court's future »

Law and order will be the theme for the biggest cases facing the high court. Among them:

  • Three capital punishment disputes, the biggest being a fundamental look at lethal injection protocols and whether they represent cruel and unusual punishment. Another deals with the rights of foreigners on death row, and the third with whether child rapists should be executed. The third case is not yet on the docket but is expected to be added.
  • The rights of accused terrorists held overseas by the U.S. government and whether the federal courts will have a say in how these prisoners will be tried before military commissions.
  • The "100-to-1 disparity" in federal sentencing for defendants in crack cocaine cases, who get far harsher prison terms than powder cocaine dealers and users.
  • Whether a tough federal law to combat child pornography unfairly targets those who merely talk about or promise to distribute the indecent material, without actually doing so.
  • Also on the court's horizon is an appeal over government efforts to restrict gun rights in the name of fighting crime
  • In the climate of election season, these cases carry GOP marquee value -- a political flashpoint with storylines easily accessible to the public.

    The court is nearly evenly divided along ideological lines. That gives Justice Anthony Kennedy's swing vote added impact.

    Court watchers agree Kennedy alone could determine just how far the ideological pendulum will swing. For the other members of the court, "It's Justice Kennedy's world, and you just live in it," Goldstein said.

    The figures speak for themselves. A third of the cases decided last term were by a 5-4 margin, the highest number in years, and Kennedy was in the majority in all two dozen of those closely split rulings. Those included affirming a federal ban on so-called "late-term" abortion, and limiting the use of race in public school choice plans. No other justice came close to that winning hand.

    "It's hard to understate the significance of Justice Kennedy," said Douglas Kmiec, a onetime Justice Department lawyer in the Reagan and George H.W. Bush administrations, who now teaches law at Pepperdine University.

    "The problem for both the more liberal side of the court and the more conservative side is that neither fully understands Justice Kennedy," he added. "They work rather conscientiously at trying to understand his perspective, and winning him over."

    Unlike previous terms, Kennedy was the only one of the conservatives last term to break off and support the more liberal justices in some cases, including key rulings on the environment and the death penalty. That suggests the more liberal and conservative blocs -- each with four members -- may see practical reasons for standing firm in their philosophies in the most contentious cases, with the hope of drawing Kennedy to their side.

    "The new term, while it has yet to take full shape, has a number of cases on it that look like it would invite Justice Kennedy in his liberal pose to join the more progressive side of the court," said Kmiec, "That would mean the Roberts court in its third term would look very different than the Roberts court in the first or second term."

    Beyond the caseload, the individual dynamics among justices on the high court's bench could also play out along interesting storylines, among them:

  • The health scare involving 52-year-old Chief Justice John Roberts, hospitalized in July with a still-unexplained seizure: Can he cast aside any concerns over his still-developing leadership skills?
  • The ageless 87-year-old John Paul Stevens, leader of the more liberal wing of the court: Can he hold together a loose left-leaning coalition?
  • The newest justice, Samuel Alito: Will he remain a reliably conservative vote as he begins his second full term?
  • Lesser-known Justices David Souter and Stephen Breyer: Will they emerge as key behind-the-scenes players on a range of hot-button cases?
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    Roberts continued his public and private schedule after suffering a seizure at his Maine vacation home two months ago. He delivered speeches recently in Montana and upstate New York, and associates say he is determined to put to rest speculation that the seizure disorder will be a long-term cause for concern in his job.

    Those sources say further tests found no serious underlying medical problems, but Roberts is being urged to have regular follow-up exams. E-mail to a friend E-mail to a friend

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