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Washington�With its terrorism rulings still resonating in government and the military, the U.S. Supreme Court will end its summer recess with no war-related cases on its nearly half-full docket but with high-stakes challenges involving the death penalty for juveniles, medical use of marijuana, a potential revolution in federal criminal sentencing, a battle over direct shipment of wine to consumers and major questions in age and gender discrimination lawsuits. Quiet terms often follow blockbuster terms, noted court scholar and former clerk Mark Rahdert of Temple University James E. Beasley School of Law. Last June’s terror-related cases pushed that term into the blockbuster category, he said, but the new term is hardly a quiet one. The new term, beginning on Oct. 4, is also incomplete. The justices have docketed 40 cases for argument and decision, and most likely will add to that number either on Oct. 4 or shortly before the opening day-the product of culling through more than 1,000 petitions filed during the summer. The court’s argument docket, which has settled around 75 to 80 cases, is usually complete by mid-January. Between now and the new year, the justices may also face new challenges involving Congress’ latest ban on so-called partial-birth abortion procedures, mandatory limits on campaign spending, the allegedly abusive use of eminent domain for private redevelopment and government displays of the Ten Commandments. “There are a number of interesting cases already on the docket-surprisingly so, given that the summer often offers slim pickings,” said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law. The medical marijuana and wine shipment challenges, along with another attempt to pre-empt state tort law, have important implications for the chief justice’s federalism march: the recalibration of power between the federal and state governments, said veteran high court advocate Mark I. Levy of Kilpatrick Stockton’s Washington office. And the juvenile death penalty challenge, while obviously a critical death case, also will return the justices to a more recent debate among themselves, added Levy: the role of foreign law in the interpretation of U.S. law. “This has come up in a number of very big cases recently,” said Levy, noting the influence of international law in decisions involving affirmative action, gay rights and the death penalty for the mentally retarded. The justices also have slated a number of business-related cases, including key challenges in two areas of the law that they do not often visit-securities and environment-as well as important questions about the taxation of lawyers’ contingency fees, secret reports in the Tax Court and the fair use defense to trademark infringement. [See related story, Page 12.] “For a body of cases that gets selected early, this is already a good foundation for a term to watch,” said Kmiec. Weed and wine In a way, the issue presented in the direct wine shipment challenge is a “wonderful” exam question in a first-year constitutional law court, said Thomas Baker of Florida International University College of Law: How do you reconcile the 21st Amendment and the commerce clause in this scenario? The scenario involves about two dozen states that bar the direct shipment of wine from out of state to their citizens even though they allow their in-state wineries to ship directly to their citizens. The laws are particularly harmful to small winery owners, such as Juanita Swedenburg of Virginia, who rely on mail shipments to out-of-state customers. Despite the discrimination against interstate sales and delivery of wine-an apparent violation of the dormant commerce clause-Michigan and New York argue in the high court that the 21st Amendment authorizes states to regulate the flow of alcohol across and inside their borders to ensure that taxes are collected and minors are protected. Granholm v. Heald, No. 03-1116; Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120; Swedenburg v. Kelly, No. 03-1274. “The court has been very fuzzy in the area of the 21st Amendment and interstate commerce,” said Baker. “In this case, it may be that the technology is pushing the law. In the era of the Internet, interstate commerce means a whole lot more when you have browsers and can go shopping for wine in California from your desk in Florida.” The commerce issue is straightforward, said Kmiec. “These are states overtly discriminating against interstate commerce. Their justification hardly seems of the order that would pass the virtual condemnation of that discrimination. But the real undetermined feature of the case is the 21st Amendment. “This is one of the cases this term that not only is going to test standard liberal and conservative principles but also provoke some insight into how parts of the Constitution, otherwise overlooked, should be interpreted.” While the wine cases test standard liberal and conservative principles, the medical marijuana challenge gives “traditional social conservatives heartburn,” chuckled Kmiec. In Ashcroft v. Raich, No. 03-1454, the Bush administration seeks to overturn a ruling by the 9th U.S. Circuit Court of Appeals that held the Controlled Substances Act of 1970 to be an invalid exercise of Congress’ power under the commerce clause when used to regulate the intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician. “I think there is a very solid case for saying, given what the Supreme Court has done recently, that Congress does not have commerce clause authority to bar the personal medicinal use of marijuana,” said Temple’s Rahdert. “It’s a noncommercial activity. The court has so restricted the permissible rationales for congressional legislation on noneconomic activity that I think the 9th Circuit was engaged in a very straightforward reading of the Supreme Court’s current doctrine.” Kmiec agreed, adding that the Federalist Society and other federalism champions should demonstrate that principle is above politics by supporting the 9th Circuit’s conclusion. And the high court too should show that it truly is trying to recalibrate, in a sensitive and sensible way, the relationship between federal and state governments, he said. “The court has the opportunity to say this very isolated use of this otherwise illegal substance doesn’t empower the federal government to wholly replace the states on this issue,” he said. Youth and death By far the case that has attracted the greatest amicus effort of the soon-to-begin new term is Roper v. Simmons, No. 03-633, in which the justices will re-examine their 1989 ruling affirming the constitutionality of the death penalty for a 16-year-old Kentucky youth convicted of murder. In the latest case, Christopher Simmons of Missouri was condemned to death in 1993 when he was 17. Relying on the evolving standards of decency that led the high court in 2002 to ban the death penalty for mentally retarded persons in Atkins v. Virginia, the Missouri Supreme Court set aside Simmons’ sentence in 2003 after finding a national consensus had developed against the execution of juveniles. “I have the feeling that there are enough votes for capital punishment in general on the court that the court is going to say the difference between juvenile and adult status is not sufficient to warrant a constitutional bar on juvenile capital punishment,” said Rahdert. “If you look at the prevailing norm in society, they are trending towards more treatment of juveniles as adults, not less.” Kmiec and Baker, however, believe the court will extend the reasoning of its 2002 decision in Atkins to juveniles. “This is a case that is going to once again align the U.S. with the greater world community, much to the gnashing of teeth on the other [Scalia-Thomas] side of the [debate],” predicted Kmiec. “The lower court followed the reasoning of Atkins to the letter.” Baker called Roper “the next big battle” over the role of international law and opinion in the court’s decision-making. The international community overwhelmingly opposes capital punishment for juveniles. Numerous briefs have been filed in Roper supporting Simmons by, among others, the European Union, the bar associations of England and Wales, former U.S. diplomats and 15 Nobel Peace Prize laureates. In the criminal law area, the justices also have agreed at the government’s request to resolve quickly whether the Federal Sentencing Guidelines are unconstitutional because of the high court’s recent ruling in Blakely v. Washington. A 5-4 court last June struck down Washington’s sentencing scheme because judges, not juries, enhanced sentences on the basis of facts not found by jurors. The federal scheme is similar, and shortly after the Blakely ruling, some federal judges made inconsistent decisions on the guidelines issue. The high court will examine the Sixth Amendment question in two consolidated cases, U.S. v. Booker, No. 04-104, and U.S. v. Fanfan, No. 04-105, out of the 7th and 1st circuits. The justices return once again to the scope of the Fourth Amendment in Illinois v. Caballes, No. 03-923. The state asks the justices whether a canine drug sniff during a routine traffic stop requires a reasonable, articulable suspicion. Criminal law scholar Tracey Maclin of Boston University School of Law said last term’s ruling in Hiibel v. 6th Judicial Dist. Court, upholding a Nevada law requiring a person to identify himself at an officer’s request when stopped “bodes ill” for Caballes. “There’s language in Hiibel saying that during Terry stops, police should be able to ask questions and pursue their investigations,” he said. “It wouldn’t surprise me if that was the planting of seeds for Caballes.” Sports and aliens In Jackson v. Birmingham Board of Education, a high school basketball coach asks whether the implied private right of action for violations of Title IX of the Education Amendments of 1972 includes redress for retaliation complaints about sex discrimination. Roderick Jackson began receiving negative evaluations and was eventually fired as a girls’ basketball coach after complaining about disparities in the boys’ and girls’ programs. The retaliation issue is “very important” because there are anti-retaliation provisions in almost every modern civil rights law, but Title IX, said Charles Craver of George Washington University Law School. Since the justices found an implied private right of action in Title IX, he added, “They are now in the position of deciding whether to provide similar protection to people who have been given the implied cause of action.” The justices also have several immigration cases on the docket, but two most likely to be used by the government to invoke national security concerns are Crawford v. Martinez, No. 03-878, and Benitez v. Wallis, No. 03-7478, involving Mariel Cubans. The justices ruled three years ago that there is a reasonable time limitation, about six months, on the indefinite detention of resident aliens who are not likely to be removed to another country in the reasonably foreseeable future. The justices are asked whether that time limitation applies to aliens detained at the borders and ordered removed.

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