WASHINGTON – After a significant term that embroiled the justices in the debate over the war on terrorism and the government’s treatment of enemy combatants, the Supreme Court returns to the bench Monday with its attention focused on critically important issues of domestic law-enforcement.

Kicking off the 2004 term, the justices in the next two weeks will consider whether states can execute 16- and 17-year-old killers and whether the system that guides federal judges in setting sentences for defendants violates the Constitution. Next month, the court will examine whether states can racially segregate new prison inmates and, in an Illinois case, whether to limit the use of drug-sniffing dogs in routine traffic stops.

Taken together, those cases could “transform America’s criminal-justice system for years to come,” said Steven Shapiro, legal director of the American Civil Liberties Union.

The court’s other big-picture, constitutional cases this term – those involving the kind of complex topics that captivate law professors – also could dramatically affect life for many Americans. In a case about the scope of federal power, for example, the court will decide whether the federal government can prosecute terminally ill cancer patients who grow marijuana to help ease their suffering.

Other weighty constitutional issues are also on the docket. Early next year, the court plans to consider the extent to which the government can condemn a person’s private property and use it for redevelopment. It also will hear two states defend their laws blocking shipments of wines sold over the Internet from other states directly to their residents.

When the justices take their seats in the courtroom on the first Monday in October, they will have served together 10 years without a change in membership. No Supreme Court in the modern era has been together as long without a retirement.

The continuity has confounded court watchers, who thought for certain four years ago that the new president would get at least one nomination. But now, if President Bush loses the White House, he will join Jimmy Carter in becoming only the second president in more than 100 years to not make an appointment to the court. The winner in November, be it Bush or Sen. John Kerry, might get to fill multiple openings since four of the court’s nine members are 70 or older, although none has publicly discussed retiring.

Gregory Garre, a Washington lawyer who practices before the court, said the justices’ longevity streak has made them bolder and more confident.

“The court is getting more involved in more aspects of American life and more confident about taking on controversial legal issues,” Garre said. “At the same time, the court is very much a pragmatist court, and it reaches decisions very narrowly.”

The court is a “little bit of a contradiction,” said Christopher Landau, a Washington appellate lawyer with Chicago-based Kirkland & Ellis. He noted that the court over the years has reduced the number of cases it decides in a term, reflecting a restricted view of its role.

“If they wanted to be more aggressive, they could take more cases. They are fairly reticent to get involved in a lot of issues,” Landau said. “But they don’t necessarily shy away from taking them when they fall on their doorstep.”

And this term, the biggest case on the docket so far will immediately confront the justices. The court announced in August that it would consider the constitutionality of the federal sentencing guidelines on an expedited basis after a ruling it rendered in June caused chaos in the lower courts. The justices will hear two hours of oral arguments Monday in an unusual afternoon session.

The case could affect thousands of federal sentences, according to the ACLU’s Shapiro. At issue is whether the guidelines, which federal judges use to calculate a defendant’s sentence, violate the constitutional right to a jury trial spelled out in the Sixth Amendment.

Some lower courts, including the 7th U.S. Court of Appeals in Chicago, have ruled that the guidelines are unconstitutional in light of the Supreme Court’s decision last term in Blakely vs. Washington. That case invalidated a state sentencing law because it allowed judges to increase a defendant’s sentencing range based on facts not heard by the jury trying the case.

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In a related case, the 7th Circuit Court said the federal guidelines also must be blocked because they permit judges to find facts about a crime or defendant that could result in longer sentences than the defendant would have received based on the jury’s verdict. In that case, the judge – not the jury – determined the actual quantity of drugs in defendant Freddie Booker’s possession and found that he had obstructed justice. Those two findings served to increase his sentence by almost 10 years.

In a decision by Judge Richard Posner, the appeals court said that scheme violated Booker’s right to a jury trial under the Sixth Amendment. In light of the Supreme Court’s Blakely decision, Posner said, Booker had a constitutional right to have a jury determine how much cocaine he possessed and whether he obstructed justice.

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In the death penalty case, the court will decide whether states or the federal government can execute juveniles who commit murder when they are 16 or 17 years old. The court ruled in 1988 that the government could not execute juveniles under 16.

In deciding the case, which stems from a Missouri crime, the court will consider whether a national consensus has emerged against the death penalty for juveniles. In 2002, it ruled that there was such a consensus against executing the mentally retarded and struck down laws that had permitted the practice.

The court, as usual, will add cases to its docket in coming months, and several on the horizon could bolster what already is a compelling term. The ACLU asked the court on Friday, for example, to reverse a Florida ban on adoptions by homosexuals.

Some court observers also are bracing for legal challenges to the presidential election results, raising the prospect that the court again could become involved in the election. The justices still are contending with fallout from the Bush vs. Gore decision that stopped the Florida recount in 2000 and sent George Bush to the White House.

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(c) 2004, Chicago Tribune.

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AP-NY-10-02-04 1715EDT

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