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Washington—The U.S. Supreme Court last week began its longest break between argument sessions uncertain about the return of the chief justice, but certain to face in the new year a demanding docket capped with major property rights, church-state, copyright and death penalty challenges. Chief Justice William H. Rehnquist, who is undergoing chemotherapy and radiation for thyroid cancer, has not been on the bench since Oct. 18. The court’s public information office announced last week that he would not participate in decisions in cases argued in the November argument round unless needed to break a tie. But the court said he would participate in cases argued in December. The justices have issued 12 decisions since the term’s beginning on the first Monday in October: nine decisions in argued cases and three per curiam (unsigned) rulings. Court watchers were surprised last week when the eagerly anticipated decision on the constitutionality of the Federal Sentencing Guidelines did not come down. The cases- U.S. v. Booker, No. 04-104 and U.S. v. Fanfan, No. 04-105-were the first arguments of the term, expedited at the request of the Department of Justice because of widespread uncertainty about the guidelines created by the court’s decision in June in Blakely v. Washington, 124 S. Ct. 2531. But the sense of urgency may be tempered by the fact that federal prosecutors have been dealing with Blakely fallout since June, either by having defendants waiving their possible right to jury determination of facts meriting enhanced sentences, or by including those facts in indictments. The court also may be struggling with the second question raised by the Booker/Fanfan challenges: If sentence enhancements based on judge-determined facts do violate the Sixth Amendment, are the guidelines unconstitutional in whole or in part, said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law. “I do think the knot is the remedy,” he said. “I don’t think the status quo will survive.” Rehnquist’s absence Kmiec suggested that, as the term progresses, the chief justice’s absence introduces an unpredictable dynamic in a number of ways. “Because the chief is not there to ask a question, that changes the tenor or direction of conversations with the advocates,” said Kmiec. “When the justices go into conference, it’s not clear whether the chief is participating via speakerphone or informed of the discussion. Who is leading discussion? Presumably it’s Justice [John Paul] Stevens, but then how different is his opening summary of a case than if the chief justice were giving it? And how do the other justices respond to that difference? “That dynamic could cause a vote that was equivocating to change, or it could affect the substance of how an opinion is written,” he said. Rehnquist’s participation in December cases means he will be voting in two of the most important federalism cases. Those are Ashcroft v. Raich, No. 03-1454, in which the justices will decide if federal regulation of the in-state production and private medicinal use of marijuana violate the commerce clause, and Granholm v. Heald, nos. 03-1116, 03-1120 and 03-1274, in which the high court examines the intersection of the dormant commerce clause and the 21st Amendment in a challenge to state bans on direct sales of wine to in-state consumers by out-of-state wineries. Also argued and awaiting decision are the following cases: Roper v. Simmons, No. 03-633: whether the death penalty for juveniles who commit murder at age 17 violates the Eighth Amendment. Illinois v. Caballes, No. 03-923: whether the Fourth Amendment requires reasonable suspicion for a canine drug sniff during a routine traffic stop. Smith v. City of Jackson, No. 03-1160: whether disparate impact claims are permitted under the Age Discrimination in Employment Act. Jackson v. Birmingham Board of Education, No. 02-1672: whether Title IX of the Education Amendments of 1972, banning sex discrimination in programs receiving federal funds, encompasses retaliation claims. Property rights In the new year, the justices will take up an unusually large number of property rights cases. In Kelo v. New London, No. 04-108, the court will examine whether the eminent domain authority is being too widely used to benefit private parties, and in Lingle v. Chevron USA, No. 04-163, the court will decide if state-enacted rent control laws “took” Chevron’s property by creating premiums for Chevron’s tenants. The justices also will decide if a federal takings claim is barred by a previous judgment denying compensation under state law. San Remo Hotel v. San Francisco, No. 04-340. The justices will consider a perennial problem in two cases involving Ten Commandments displays on government property. Van Orden v. Perry, No. 03-1500, and McCreary v. ACLU, No. 03-1693. They also will examine the international treaty rights of foreign nationals to meet with consular officials from their home countries when arrested in death row cases. Medellin v. Dretke, No. 04-5928. And finally, the court will enter the controversy over peer-to-peer swapping of music and movies between individual computers in the high-stake copyright challenge, Metro-Goldwyn-Mayer Studios v. Grokster, No. 04-480.

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