- The Washington Times - Monday, October 4, 2004


The Supreme Court session starting today features many of the same wrenching issues that splintered the justices during the last term and led to some unusually acrimonious dissents.

The death penalty, free speech and prison sentences are back on the agenda, along with new topics, such as medical marijuana and out-of-state wine purchases that are likely to produce significant disagreement.

Many of the biggest cases last session came down to 5-4 votes, and some justices on the losing end offered harshly worded minority opinions.

Justice Sandra Day O’Connor predicted a disastrous impact from the court’s June ruling limiting judges’ roles in sentencing convicted criminals. “The court ignores the havoc it is about to wreak on trial courts across the country,” she warned in what turned out to be a prescient statement.

The ruling struck down a state sentencing system and led judges across the country to invalidate the similar federal system.

Justices agreed over the summer to hear arguments on the first day of the nine-month term in two appeals that will determine whether the federal sentencing system violated a defendant’s Sixth Amendment right to a jury trial. The decision will affect many thousands of people.

“Often the court draws back when it looks over the precipice, but I’m not sure they’re going to pull back” on this case, said Chris Landau, a District lawyer and former Supreme Court clerk. “They’re not a timid court.”

Justices also were divided 5-4 in a major test last term of the government’s power to control speech. In this case, which upheld major parts of a campaign finance law, Justice Antonin Scalia complained that his colleagues caused a tragedy: “This is a sad day for the freedom of speech.”

District lawyer Erik Jaffe, a former Supreme Court clerk, said strong opinions rarely produce long-standing animosity among justices.

“They get annoyed, frustrated or mad or whatever you see expressed in critically worded opinions. Then they get over it and go to the next case,” he said.

During each term, the Supreme Court hears about 80 appeals, only a fraction of the nearly 10,000 the justices are asked to consider.

On schedule this year are cases dealing with the rights of immigrants, the power of the government to prosecute cancer patients who use marijuana at the recommendation of their doctors and the government’s authority to take private property through eminent domain.

A case sure to elicit strong opinions will be argued this month when justices are asked to rule on the constitutionality of executing killers who committed their crimes when they were juveniles.

The juvenile case will decide the fate of about 70 people on death row who killed when they were teenagers.

This year’s top free speech case asks whether the government can force cattle producers to pay for programs such as the “Beef: It’s What’s for Dinner” ad campaign. The court’s ruling is significant because the government forces growers of many agricultural products, from eggs to alligators, to share expenses for marketing.

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