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Highly anticipated decisions on medical marijuana, Ten Commandments displays and Internet sharing of movies and music are expected in the final weeks of the Supreme Court term. The court has already issued two of its more notable rulings: striking down mandatory sentencing guidelines as a violation of a defendant’s right to a jury trial and outlawing the death penalty for those who were juveniles when they committed their crimes. There are 35 opinions remaining before justices take a summer break. One of the most closely watched decisions involves whether states can shield medical marijuana users from federal prosecution on drug charges. The case pits the conservative anti-drug interests of the Bush administration against the conservative principle of state’s rights. Another emotional issue involves Ten Commandments displays. Justices will rule in a pair of cases asking whether such displays on government property violate the U.S. Constitution’s ban on “establishment” of religion. Other major rulings concern whether states can bar interstate wine sales over the Internet-a dispute testing the limits of state power in regulating alcohol-and whether the government can force beef producers to pay fees that are used to promote the industry, even if producers disagree with the method. Justices will also rule in an eminent domain case that asks whether cities may seize people’s homes to make way for economic development projects. And it will decide a big-money dispute over whether Internet file-sharing services should be held responsible when their customers illegally swap songs and movies online. Predicting the justices A new study published in The Journal of Appellate Practice and Process has come up with a surprisingly simple and accurate way of predicting high court outcomes based on the number and tenor of oral argument questions by the justices. Sarah Shullman’s article, “The Illusion of Devil’s Advocacy: How the Justices of the Supreme Court Foreshadow Their Decisions During Oral Argument,” reports on oral arguments in 10 cases during the October 2002 term. Shullman looked for correlations-and found them. In all of the cases, the justices in aggregate asked more questions, and more hostile questions, of the party that ultimately lost the case. The model of the devil’s advocate-peppering the side you favor with tough questions-did not appear prevalent enough to derail this conclusion. Shullman found that Justice Ruth Bader Ginsburg asked the most questions-and the least hostile ones-of all the justices, and that Justice Stephen G. Breyer asked the most hostile questions. But his was equal-opportunity hostility, handed out in equal measure to both sides. Justice Sandra Day O’Connor, often viewed as the mystery swing vote, turned out to be highly predictable using this method; she asked more than three times as many questions of the party she then voted against than the party she supported. Chief Justice William H. Rehnquist was one of the least predictable, according to his nearly equal questioning of both sides. Justice Anthony M. Kennedy’s questioning correlated least predictably with his ultimate votes. Shullman acknowledges that her sample was small, but the methodology has already been tested. John Roberts Jr., one of the masters of the trade before taking the bench in 2003, used her theory for a talk he gave on oral advocacy before the Supreme Court Historical Society last year. Picking 14 oral arguments from the 1980 term and 14 from the 2003 term, Roberts found that in fact the most questions went to the losing party in 24 of the 28 cases-an 86% rate of accuracy. -ALM, AP

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