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WASHINGTON � Challenges to the power of the president, Congress and the judiciary, from Guant�namo Bay, Cuba, to state death rows, will provide early drama and potential landmark rulings in the new term of the still-evolving Roberts Court. If the U.S. Supreme Court had agreed to decide only the two cases involving the tension between Congress’ Military Commissions Act of 2006, governing treatment of Guant�namo detainees, and the judiciary’s federal habeas corpus jurisdiction, those cases likely would be enough to make the term stand out in court history books. The justices, however, also have agreed to decide important questions concerning: • The president’s authority to require states to comply with international treaty obligations when they affect state criminal processes. • Sentencing judges’ ability in the now-voluntary guideline era to weigh the controversial crack-cocaine sentencing disparity. • The First Amendment implications of certain state election systems, including how New York chooses judicial candidates. • Requirements for filing job bias charges with the Equal Employment Opportunity Commission (EEOC) as well as the admissibility of so-called “me, too” evidence � issues raised in separate age discrimination challenges. • And, major securities, federal pre-emption, arbitration and other issues with significant ramifications for business and consumers. [See related article.] By the end of last term, the high court had agreed to hear arguments in only 28 cases (26 argument hours because of cases consolidated). That amount is well behind the number of certiorari grants in prior terms and is insufficient to fill the court’s argument calendars through December. But the number should increase after the justices hold their summer conference on Sept. 24, when they go through more than a thousand petitions seeking their review. “I can’t think of any theme running through the term’s cases so far,” said constitutional law scholar Burt Neuborne, legal director of the Brennan Center for Justice at New York University School of Law, which is handling one of the election challenges. No theme, but potential drama as the views of the court’s newest justices � Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. � continue to be revealed in new areas of the law. There also will be some drama outside of the court as the new term opens. Oct. 1 marks the publication of a memoir by the most silent justice on the high court bench � Justice Clarence Thomas. Guant�namo redux The Supreme Court is now no stranger to the legal fallout from the nation’s war on terrorism. Since 2004, the justices have considered five challenges to the Bush administration’s approach to detaining enemy combatants � both citizens and aliens. The latest cases � Boumediene v. Bush, No. 06-1195, and Al Odah v. U.S., No. 06-1196, which have been consolidated for argument � involve the congressional response to Hamdan v. Rumsfeld, in which the court in 2006 struck down military commissions authorized by the president because they violated the Uniform Code of Military Justice and the Geneva Conventions. Congress subsequently enacted the Military Commissions Act of 2006. The Boumediene and Al Odah detainees ask, among other questions, whether that act’s bar on their seeking federal habeas review violates the Constitution’s suspension clause. The cases are important legally as well as politically, noted high court scholar Douglas Kmiec of Pepperdine University School of Law. “They are in play now in so many venues,” he said. “The [issues] will be a topic of conversation in the confirmation hearings of Michael Mukasey for attorney general. There is now debate in Congress itself about the amending the act to restore habeas corpus.” Kmiec suggested that reported problems with the current military commissions, as well as an administration’s legal argument that is complex and not entirely in keeping with the Great Writ’s history, do not bode well for the government in these cases. The justices also confront a familiar case with serious domestic and international implications in Medellin v. Texas, No. 06-984. In 2004, the International Court of Justice (ICJ) ruled in a case involving 52 Mexican nationals on death row in the United States that U.S. authorities had violated the Vienna Convention on Consular Relations by failing to inform the Mexicans of their right to consult their consuls when arrested. Jose Medellin raised that issue in his first Supreme Court case after failing to win federal habeas relief on that issue. Before the Supreme Court could reach the merits, President Bush in 2005 issued an executive memorandum, ordering the Texas state courts to comply with the ICJ judgment. Medellin applied for a habeas writ. But in November 2006, the Texas Court of Criminal Appeals denied it, saying that ICJ decisions are not binding on U.S. courts, and that the executive memorandum demanding state compliance exceeded presidential authority. The high court now has Medellin’s second appeal. “The case poses important questions about how the court will see the balance between states’ rights under the banner of federalism and the foreign affairs powers of the president, including the treaty power,” said international law scholar Duncan Hollis of Temple University James E. Beasley School of Law. There are precedents supporting both sides, he noted, but they have never “crossed paths” in a case until now. “In other words, this is a big case � not simply because it involves the death penalty,” said Hollis. After last term’s major job bias ruling � Ledbetter v. Goodyear, 127 S. Ct. 2162, a pay discrimination challenge that the worker lost � civil rights lawyers “are hoping for the best and preparing for the worst,” said Gilliam Thomas, senior staff attorney with Legal Momentum, about the new term’s two age bias cases. In Federal Express v. Holowecki, No. 06-1322, the justices will decide what qualifies as filing a discrimination charge with the EEOC. In this case, a group of FedEx Corp. workers, believing they were victims of age discrimination, filed an intake questionnaire, not a formal “charge” document, with the agency. The EEOC, however, never notified FedEx or did anything else. After waiting 60 days as required by law, the workers filed suit. In Sprint/United Management v. Mendelsohn, No. 06-1221, a worker, who believed her age was the reason for her layoff, sought to introduce evidence from five other Sprint employees who had been laid off � but by different supervisors � and also believed they were age bias victims. The lower courts have divided on the admissibility of this “me, too” evidence. Both cases are important, said employment litigator Debra Katz, partner in Washington’s Katz, Marshall & Banks. “The EEOC is not a plaintiff-friendly agency and it’s not easy to file a charge,” she said. “The idea that somehow you will impose a requirement on who can file a charge based on a formality seems very problematic.” Sprint, she added, is about proving discrimination, which is rarely done by offering direct evidence of discrimination. Limiting evidence that shows context, environment, and tone from the top, Katz said, “cuts the feet out from under one of the primary tools plaintiffs have in proving their case.” But there is a “really strong argument” that “me, too” evidence doesn’t go directly to the state of mind of the person who made the job decision, said Paul Smith, partner in the Washington office of Chicago-based Jenner & Block. In the Federal Express case, Smith added, he thinks this court will say the statute says to file a “charge,” and the worker did not file one. Although both cases arise under the Age Discrimination in Employment Act, their outcomes will have an impact on discrimination claims under Title VII of the Civil Rights Act of 1964 as well as the Americans With Disabilities Act. The court’s two major sentencing cases present issues stemming from the justices’ sentencing revolution of nearly a decade now. Kimbrough v. U.S., No. 06-6330, asks whether a sentencing judge can consider the 100-to-1 disparity in sentences for crack-cocaine offenses in relation to those involving powder cocaine, as well as recent reports by the U.S. Sentencing Commission on that disparity in imposing sentences. Gall v. U.S., No. 06-7949, asks whether a judge must justify a deviation from the sentencing guidelines for the sentence to be held “reasonable.” Both cases are “critical,” said Ryan King, policy analyst with The Sentencing Project. “Although the Gall case is probably more broadly important for regular sentencing mechanics, Kimbrough is particularly interesting because it touches on an issue that has been contentious in judicial circles for 21 years and comes at a time when there is considerable attention to crack-cocaine on [Capitol] Hill.” The justices have a trio of election cases this term. The court in a 2000 decision held that a blanket primary � where all voters could vote for any party’s candidate regardless of the voter’s affiliation � violated the First Amendment association rights of political parties, but a truly nonpartisan primary with the top two winners going to a runoff probably would not. In Washington State Grange v. Washington Republican Party, No. 06-713, consolidated with No. 06-730, the justices will review a circuit decision that Washington’s top-two primary, which allows candidates to use their party “preference,” violates the First Amendment. N.Y. Board of Elections v. Lopez Torres, No. 06-766, challenges lower court rulings striking down New York’s convention system for selecting candidates to its trial-level state supreme courts. The political parties control the nominating conventions and judicial hopefuls not favored by party leaders will not get on the ballot. The 2d Circuit decision is “pretty aggressive,” said election scholar Edward Foley of Ohio State University Michael E. Moritz College of Law. “It calls for use of the 14th Amendment to invalidate state law and policy on not only how to structure a voting process but also your judicial system,” he said. “In that sense, I could imagine the court asking whether it’s appropriate to federalize this issue of state governance.” Other cases to watch this term: Dept. of Revenue of Ky. v. Davis, No. 06-666. Does a state violate the dormant commerce clause by giving more favorable tax treatment to income earned by bonds it has issued than income earned by bonds of other states? Danforth v. Minnesota, No. 06-8273. May state courts rely on their own state laws or constitutions to decide when U.S. Supreme Court decisions apply retroactively to a broader class of defendants than under the Supreme Court’s standard? U.S. v. Williams, No. 06-694. Do provisions of the PROTECT Act of 2003, which criminalize the noncommercial pandering of images of “virtual child porn” and of nonobscene actual children, violate the First Amendment?

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