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From the moment it returns to the bench Jan. 7, the Supreme Court will be embarking on a schedule that almost guarantees it will make controversial headlines in the midst of the 2008 presidential campaign. At times in its history, the high court has deliberately stepped back from the limelight in presidential election years. But for all its talk of judicial modesty, the current Court seems to be ignoring the political calendar and saying, “Bring it on.” The Court’s high-profile year begins at 10 a.m. Monday with consideration of Baze v. Rees, a challenge to the lethal-injection formula used in most executions. The pace continues Wednesday with arguments in Crawford v. Marion County Election Board, which could affect the 2008 election directly by either upholding or striking down voter identification laws — laws that critics say will suppress Democratic voter turnout. Then in March the high court takes up District of Columbia v. Heller to decide the hottest-potato question in constitutional law: the meaning of the Second Amendment’s right to “keep and bear arms.” And sometime soon after that, most likely, it will rule on the legal rights of Guant�namo detainees in Boumediene v. Bush, a case it first declined to review, then added to its docket. All this is happening under the stewardship of Chief Justice John Roberts Jr., who said during his 2005 confirmation hearings, “I don’t think the courts should have a dominant role in society.” The Constitution’s Framers, Roberts continued, “would not have sat around and said, �Let’s take all the hard issues and give them over to the judges.’ That would have been the furthest thing from their mind.” Brown v. Board of Education landed on the Court’s doorstep in 1951, in time for the 1952 election, but the Court put it off and did not decide it until 1954. “We’re holding it for the election,” Justice Felix Frankfurter told a clerk. “It’s just the practicalities of life — common sense.” Twenty years later, Roe v. Wade was argued in 1971 and could have been decided before the 1972 election, in which abortion was a hot issue, but it was held over and decided in 1973. Nonetheless, Cambridge University professor David Garrow, a leading scholar on the case, says “there is no hint at all in the record that election dynamics played a role” in the delay. Likewise, Garrow thinks the current justices — especially Justice Anthony Kennedy — care little whether the high court’s agenda will distract from the political process or bring the Court unwelcome attention during a campaign year: “Keeping the Court off the front pages is not a concern that Kennedy ever has.” The Court is in its own orbit, Garrow suggests, and will take on hot-button issues if they are ripe and unavoidable, no matter what is preoccupying the other branches. Even Roberts has said that sometimes, in spite of their institutional reticence, “judges have to decide tough questions” they might prefer to avoid. The lethal-injection case Baze v. Rees, for example, was the logical extension of other recent precedents that opened the door to such challenges under 42 U.S.C. �1983. Lawsuits against the procedure were popping up around the country, and it would have been hard for the Court to avoid the issue altogether. The case involves Kentucky’s three-drug protocol for executions, first devised in Oklahoma 30 years ago and in use in all but one of the states that allow executions. Critics say that, especially if they are improperly administered, the drugs can leave inmates in excruciating pain as they die but paralyzed and unable to do anything about it. A ruling in the case is unlikely to wipe out lethal injection altogether, but it could lead to states adopting other combinations of drugs or procedures. It has already led to a partial moratorium on lethal injections and has reignited the nation’s long-running debate over the death penalty. University of Virginia political scientist David O’Brien, who has written extensively about the intersection of the Court and politics, agrees that even in an election year, “you can run but you can’t hide from some of these controversies.” But the Court’s surprising — and unexplained — decision last June to grant review in Boumediene after first rejecting it, O’Brien says, demonstrates that the current Court, unlike some election-year justices in the past, “clearly has an appetite to take on the big cases.” Wednesday’s Crawford case also indicates to O’Brien that the Court is not shy about refereeing intensely political disputes in a presidential year. At issue in the case is an Indiana law that requires voters to present a government-issued photo ID before they can cast a ballot. If a voter cannot produce an ID, he can use a provisional ballot that will be counted only if he obtains the necessary ID and presents it to county officials within 10 days. The U.S. Court of Appeals for the 7th Circuit upheld the law over the dissent of Judge Terence Evans, who called the law a “not-too-thinly-veiled attempt” to discourage categories of voters, like the poor, who are “believed to skew Democratic.” Deborah Goldberg of the Brennan Center for Justice, which coordinated the briefing for opponents of the law, said at an American Constitution Society forum Jan. 3 that “the burden is severe” and could erase the right to vote for some of the estimated 21 million voters nationwide who do not have licenses or passports. And yet the Court was willing to take on what could be the most partisan election case since 2000′s Bush v. Gore. “Once you’ve tasted the blood of deciding a presidential election, maybe it’s all small potatoes after that,” says O’Brien. Ever since the Court asserted its power to review reapportionment in 1962′s Baker v. Carr, O’Brien adds, “the Court, whether dominated by liberals or conservatives, has gained more and more confidence that it can superintend the political system.”
THE JOYS OF JUNIORITY When Justice Samuel Alito Jr. joined the Supreme Court in January 2006 as its junior justice, he kept Justice Stephen Breyer from breaking a high court record. Breyer, who became a justice in 1994, fell 29 days short of having the longest tenure as junior justice in the Court’s history. That distinction is still held by Justice Joseph Story, who was junior justice for 4,228 days — more than 11 years — in the early 1800s. The latest issue of the Journal of Supreme Court History takes a definitive look at the role of junior justice, and it turns out there is more to it than meets the eye. Managing editor Clare Cushman wrote the article, which includes an extensive interview with Breyer about the position. “I missed by 29 days becoming immortal as the answer to a trivia question!” Breyer exclaimed in the interview. “It’s amusing, it’s not serious .�.�. couldn’t matter less.” The best-known duty of the junior justice is to answer the door at the Court’s private conferences, which are attended only by members of the Court. Breyer recounted his oft-told tale about answering the door once to find that he was being asked to deliver a cup of coffee to Justice Antonin Scalia. The habit of answering the door was hard to break, Breyer said. “When there is a knock at the door I suddenly react and start to get up,” Breyer said, even though it is now Alito’s job. “I had been used to it like a Pavlovian dog.” Earlier junior justices had other sentrylike functions, Cushman writes. Back when the justices dined collegially at a D.C. boarding house, Chief Justice John Marshall gave Story the job of helping him enforce the rule that wine would be served only when the weather was wet. Occasionally, Marshall would tell him, “Brother Story, step to the window and see if it does not look like rain.” If Marshall’s thirst for wine was great, they would agree that it was raining somewhere in the Court’s jurisdiction. But the lesser-known and more important function of the junior justice, at least since the early 1970s, has been to “give orders” to the Court clerk and staff after the justices’ private conferences. When four justices vote to grant review of a case, that decision must be recorded and communicated faithfully to the clerk so the lawyers and public can be informed. That task was traditionally in the hands of the chief justice, until Warren Burger, early in his tenure, began delegating it to the junior justice, who at the time was William Rehnquist. “It goes very quickly,” Breyer told Cushman. “I have to be particularly careful to get it exactly right.” Just as Justice Ruth Bader Ginsburg, the previous junior justice, briefed Breyer on how to do the job, so too has Breyer helped Alito. “He has picked this up very well,” Breyer reports. The junior justice also speaks last at conference when cases are discussed — a mixed blessing, in Breyer’s view. Junior justices go last in funeral processions and when entering the House chamber for the president’s State of the Union address. But Breyer knocked down the speculation that he has attended so many State of the Union addresses during his years on the Court because that too is a chore assigned to the junior justice. “People attend if they wish to attend. I do wish to attend, so I go.” Footnote: In case you are wondering why Roberts, who joined the Court four months before Alito, did not take the junior justice mantle from Breyer, it is because, by Court custom, the chief justice is instantly regarded as number one in seniority.
DOCKET KEEPS SHRINKING After the end of the Supreme Court’s previous term, commentators fretted that the already-low number of cases the Court decided (only 67 signed opinions) might go even lower this term. In what was seen as a partial response, the Court in late September granted review in 17 cases, an unusually large number that helped fill its argument calendar for January and February. But one of those cases, Ali v. Achim, was dismissed Dec. 27 following a settlement of the issue by the parties in the case. The settlement, between the U.S. government and a Somalian refugee, is unusual because the government is usually loath to scrub a case after the parties and the Court have devoted so much time and effort to it. The case had drawn significant interest from international human rights groups and the U.N. High Commissioner for Refugees. At issue was the provision of federal law that disqualifies an alien who is found guilty of a “particularly serious crime” from being granted asylum in the United States. Ahmed Ali, the petitioner in the case before the Court, was admitted as a refugee from Somalia in 1999. The Department of Homeland Security initiated deportation proceedings after Ali was convicted in Wisconsin in 2000 of “substantial battery” for attacking a man with a box cutter. The 7th Circuit ruled that Ali’s crime could fit the law’s definition of a “particularly serious crime.” The court also remanded to the Board of Immigration Appeals Ali’s separate claim that he deserved protection from returning to Somalia under the U.N. Convention Against Torture. After the Court granted review, Ali’s lawyers contacted the government to see if it was willing to talk about Ali’s CAT claim, which, if successful, would avert deportation. David Gossett of Mayer Brown, part of Ali’s legal team, says the government in December agreed to stipulate to relief under the U.N. convention, while still asserting that Ali was removable under the statute. Gossett says that under current “enforcement priorities,” Somalia is not a country the U.S. government is actively seeking to deport people to, anyway. So, even though the larger statutory issue remains unresolved, Gossett says a settlement was reached in the client’s best interests. “He is not being kicked out of the country, so he is a happy camper.” Other cases in the appeals pipeline will bring the same issue to the Court soon, Gossett said.
Courtside is an occasional column on developments, large and small, at the Supreme Court. Tony Mauro can be contacted at [email protected].

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