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The Supreme Court returns to the bench on Oct. 4 and almost immediately will set about cleaning up the chaos it created in the federal sentencing system in June before it left for its summer recess. In a rare two-hour afternoon session on Monday, the Court will hear arguments in United States v. Booker and United States v. Fanfan, hastily added to its docket in the aftermath of its June 24 decision in Blakely v. Washington, which struck down a sentencing system similar to the federal one. One sign of the hurried scheduling of the cases is that with one week to go before oral argument, it was still not certain who would argue on behalf of the defendants in the consolidated cases. And there is continuing debate over whether Justice Stephen Breyer, who as a member of the U.S. Sentencing Commission in the late 1980s helped devise the guidelines, should participate. The sentencing dispute will launch a term with an array of cases dealing with issues that range from home-grown marijuana and interstate wine sales to the juvenile death penalty, prison segregation, and beef advertising. Age discrimination, Title IX and a new round of Fourth Amendment search cases are also on the agenda. Some Court observers have described the coming term as one unlikely to produce landmark decisions, in contrast to the last two terms. “It’s starting out as a mop-up operation,” says Jeffrey Lamken, head of the appellate practice at Baker Botts in the District. The Court had granted review in 40 cases so far as of last week — about half the number it will ultimately hear and decide this term if it follows its recent pattern — in addition to those it began announcing Tuesday, the day after its long summer conference. Last year at this time, the 2003 term looked like a “procession of midgets,” but later developed into a blockbuster term, former Solicitor General Seth Waxman reminded the audience at a Sept. 22 briefing sponsored by the National Legal Center for the Public Interest. Cases spawned by the Court’s June decisions on judicial review of terrorism-related detentions may make their way back to the Court this term, and other issues including regulatory takings and punitive damages are also in the pipeline. Some commentators, like George Washington University Law School professor Jeffrey Rosen at a Cato Institute forum Sept. 17, even predict that litigation stemming from the 2004 election could get to the Court — as it did in 2000 — if the Nov. 2 election outcome is close. THE BATTLE OVER ‘BLAKELY ‘ But it is the post- Blakely litigation over sentencing that drew the Court’s attention during the summer and prompted it to grant review on an expedited basis. The 5-4 ruling in Blakely invoked the Sixth Amendment right to a jury trial in striking down the Washington state sentencing process because it allowed judges, not juries, to decide facts that enhanced sentences. Justice Antonin Scalia, writing for the majority, said in a footnote that the similarly designed federal guidelines were “not before us and we express no opinion on them.” But almost immediately, lower court judges began ruling that the federal guidelines, like those of Washington state, were unconstitutional. More than 250 federal appellate and district court rulings have interpreted or applied Blakely in all directions, says Ohio State University College of Law professor Douglas Berman, who has been tracking the post- Blakely litigation. All circuits except the 1st, 3rd, 10th and D.C. have ruled on the application of Blakely to the federal guidelines, and all sentencing has been suspended in some federal courts, Berman says. “ Blakely caused enormous and immediate confusion across the federal court system,” says Waxman, one of the lawyers representing the criminal defendants challenging the guidelines. Waxman is a partner at Wilmer Cutler Pickering Hale and Dorr. Acting Solicitor General Paul Clement will have an hour of oral argument to convince the Court that Blakely should not apply to the federal guidelines. His brief argues that the Sentencing Commission is a judicial branch agency, and its guidelines do not increase sentences past statutory maximums. Convincing the Court that Blakely does not apply to the federal system will be a Herculean task, in Berman’s view. “The five justices in the Blakely majority really believe in it,” says Berman. “It would be a stunning about-face if any of them said it does not apply to the federal guidelines.” Scalia was joined in the Blakely majority by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. But former Solicitor General Kenneth Starr thinks the Court will recoil at the prospect of the turmoil such an outcome would trigger, with issues such as retroactivity likely to result in hundreds or thousands of sentencing appeals. “This Court tends not to like disruptive movements,” says Starr, now dean of Pepperdine University School of Law. Starr predicts a majority of the Court will find a way to uphold the federal guidelines. BREYER’S ROLE A side debate is still under way over whether Breyer, a dissenter in Blakely, should recuse in the upcoming cases. While serving as a judge on the 1st U.S. Circuit Court of Appeals, Breyer was a member of the Sentencing Commission from 1985 to 1989. In answers to a questionnaire submitted to the Senate Judiciary Committee when he was up for confirmation for his Supreme Court seat 10 years ago, Breyer stated that he “helped to draft the federal sentencing guidelines.” Because of Breyer’s role in creating the guidelines, judicial ethics expert Monroe Freedman thinks the justice should stay out of the upcoming cases, which could result in the undoing of those guidelines. “He is being called on to decide whether his brainchild is to survive,” says Freedman, a Hofstra University School of Law professor. “He is personally invested in the project in a very special way. I think it is a clear case.” In a 1989 1st Circuit ruling, U.S. v. Wright, Breyer said he would not recuse in guidelines cases “unless they involve a serious legal challenge to the guidelines themselves.” But now, with the passage of time and in light of the fact that justices cannot be substituted by others if they recuse, it appears that Breyer is staying in the Booker and Fanfan cases. Justices who recuse usually first signal their decision to do so by announcing they did not participate in the decision to grant review in the case at the outset. No such announcement from Breyer came when the Court granted certiorari in the cases Aug. 2, though Breyer could still change his mind. Northwestern University School of Law professor Steven Lubet, another judicial ethics expert, says Breyer is making the right call by not recusing. “Certainly he played a major role regarding the sentencing guidelines, so he must have thought they were constitutional at the time. But the current question — enhanced sentences in the absence of jury findings — was not on anyone’s radar screen at the time, as I recall. So I don’t think one could impute to him a position on that issue.” Lubet also notes justices who were previously legislators have a long tradition of reviewing legislation they once sponsored. But that tradition, Freedman counters, predates passage of the 1974 federal law that requires judges to recuse when their “impartiality might reasonably be questioned.” The lineup of lawyers arguing the cases is uncertain. Clement will defend the guidelines for an hour, though Deputy Solicitor General Michael Dreeben has spearheaded the government’s pre- and post- Blakely strategizing. The Supreme Court on Monday granted the motion for divided argument by the lawyers for Maine drug defendant Ducan Fanfan and Wisconsin drug defendant Freddie Booker. It denied a motion for argument time by former U.S. District Judge for the Southern District of New York John Martin Jr., who filed a brief on behalf of former federal judges while not taking sides in the dispute. Martin, of counsel with Debevoise & Plimpton in New York, had told the Court that “the voice of those who have actual experience applying the Guidelines should be heard at oral argument.” A VARIED DOCKET The post- Blakely cases are not the only ones that will make news this term. On Oct. 13, the Court will consider Roper v. Simmons, the latest challenge to the juvenile death penalty. Missouri is asking the justices to reverse a state Supreme Court ruling that said executing Christopher Simmons would violate the Eighth Amendment because he was 17 when he murdered Shirley Crook in 1993. In an unusual move, eight states have filed an amicus brief on the side of Simmons, saying the practice of executing those under 18 “can no longer be sustained” because of the “national consensus” that has arisen against it. New York Solicitor General Caitlin Halligan wrote the brief on behalf of her state, Iowa, Kansas, Maryland, Minnesota, New Mexico, Oregon and West Virginia. Also on the docket are cases over wine and marijuana that will push the Court to re-examine crucial commerce clause doctrines. Granholm v. Heald and Swedenburg v. Kelly test the constitutionality of laws in Michigan and New York that bar out-of-state wineries from shipping their products directly to in-state consumers. If the laws at issue involved anything else besides alcoholic beverages, most commentators agree they would be struck down as protectionist barriers against interstate commerce. But the 21st Amendment, which ended Prohibition, gives states explicit authority to regulate “transportation or importation” of alcohol. “It’s a very tough case,” former acting Solicitor General Walter Dellinger III said at a U.S. Chamber of Commerce briefing last week. Dellinger thinks the Court will be influenced by the fact that in this case, the 21st Amendment “works against consumer satisfaction.” Dellinger heads the appellate practice at O’Melveny & Myers in the District. In the marijuana case, Ashcroft v. Raich, Angel Raich and Diane Monson, chronically ill patients who were prescribed marijuana to alleviate pain, challenged the Justice Department’s efforts to prevent noncommercial distribution of medical marijuana grown inside California. They claim that applying the federal Controlled Substances Act in this way exceeds the power of Congress under the commerce clause. That argument would ordinarily appeal to the same Court majority that struck down on similar grounds the Gun-Free School Zones Act in the 1995 case United States v. Lopez. But the fact that illicit drugs are involved may bring a different outcome. “I can’t imagine the Court saying to John Ashcroft, ‘Hands off these ladies,’ ” says Waxman. He and others also cite the classic New Deal precedent Wickard v. Filburn, which upheld federal regulations affecting wheat that never left Roscoe Filburn’s Ohio farm. Veneman v. Livestock Marketing Association is the latest in a series of commercial speech cases involving federal programs that aid the marketing of foods. In the current case, livestock ranchers are challenging the fee they are assessed to fund the “Beef: It’s What’s for Dinner” campaign. The Court will have to navigate between conflicting doctrines relating to government speech, compelled speech, and commercial speech. In Johnson v. California, the Court on Nov. 2 will examine a California prison policy that segregates new inmates by race for their first 60 days of incarceration. The 9th U.S. Circuit Court of Appeals, using a relaxed standard of scrutiny that gives deference to prison officials, upheld the policy as a valid deterrent to violence. The high court promulgated that relaxed standard for judging prison regulations in Turner v. Safley in 1987, but the blatant racial classification in this case might produce a different result — especially since the federal government has filed a brief on the side of inmate Garrison Johnson, agreeing that the California policy should be struck down. Two other key discrimination cases will be argued this fall. In Smith v. City of Jackson, the Court will be asked if the kind of disparate-impact claims it has allowed under Title VII of the Civil Rights Act can also be filed under the Age Discrimination in Employment Act. The plight of a male coach for a girls basketball team is before the Court in Jackson v. Birmingham Board of Education. Roderick Jackson claims he was removed because he complained that the team received inadequate funding. At issue is whether, as a “third party” — not a member of the team itself — he can file a claim under Title IX, which bars discrimination in federally assisted programs “on the basis of sex.” In the latest series of Fourth Amendment search disputes, the Court will also consider three cases involving what might be called law enforcement serendipity: searches that began for one reason, but led to detention on other grounds. Devenpeck v. Alford involves police liability for arresting an individual on grounds other than the reason for which they stopped him ; Illinois v. Caballes concerns the subject of searches by drug-sniffing dogs of cars stopped for traffic violations; and in Muehler v. Mena, the issue is whether police who entered a house to investigate a shooting can detain someone inside because of suspected immigration law violations.

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