High Court: Same As It Ever Was?

CAROUSEL -- Political strategists Anita Dunn and Kevin Madden preview President Obama's State of the Union Address on "The Early Show" Wednesday, Jan. 27, 2010.
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

When the Justices began the Supreme Court term on the first Monday in October 2000, they had no way of knowing that the term, and their lasting legacy, would be dominated by a case that wasn't even on the docket. But two months later, on December 12, 2000, the Justices decided Bush v. Gore and the rest, as they say, is history.

The possibility of another nasty recount fight has to be on the minds of the Justices as they prepare for the coming term. The election this year is tight. There are plenty of "swing states" where a few hundred votes one way or another can tip the balance and, perhaps, the election itself. And while election procedures around the country have been improved since the debacle in Florida last time around, it is clear that there are still plenty of things that can (and will) go wrong. Even the fact that the Court accepted the last presidential recount case makes it more likely that it will have to accept another such case should it be asked to do so this time around.

So this preview of the 2004-2005 Court term starts off with this proviso; the granddaddy case of them all, Bush v. Kerry or Kerry v. Bush, may or may not materialize. If it does, all the cases below will recede into the background. If it does not, we'll have to be satisfied with a fairly typical docket from the Justices; a term that has its usual share of interesting and important cases as well as a few exceptional ones. There is no Pledge of Allegiance case on the docket this year to push everyone's emotional and cultural buttons. There is no massive campaign finance reform case to confuse everyone even more on a complex subject. Right now there are no huge terror law cases looming as there were last term. But there are plenty of other cases that will have people talking.

The most important cases of the term, at least so far, are on a subject — federal sentencing — that makes people's eyes glaze over. Yet the Justices clearly recognize that the current sentencing rules — which directly affect tens of thousands of cases a year — are a complete mess in the wake of a ruling they made this past spring. In fact, the Justices were so clearly concerned by the confusion they themselves caused that they promptly accepted two federal sentencing cases and set them for oral argument the very first week of the term. For a Court where time is measured in years, not weeks, that's an extraordinarily fast track.

So why the rush? Well, a growing number of judges across the country now believe that the federal sentencing guidelines — which require judges to mete out sentences according to a legal and mathematical calculus — are either unconstitutional or just plain unworkable given how the Supreme Court has interpreted them over the years. In particular, a June ruling by the Justices in the case of Blakely v. Washington has judges, prosecutors, defense attorneys and defendants all over the country wondering whether a judge ever can impose a sentence based upon any factor — such as the chance a defendant would pose a danger to the community upon release — that is not found beyond a reasonable doubt by a trial jury.

If the Justices affirm that sentences must always be based upon jury-found facts then we can pretty much kiss the federal sentencing guidelines goodbye — at least as we know them. If the Justices stop short of requiring this sort of factual inquiry, they'll have to explain how sentencing ought to work in light of their recent rulings. Either way, the whole landscape of sentencing is about to change. Now, I grant you this is not the kind of stuff that makes for dramatic play on the Evening News — it's not a "picture" story, alas — but because it affects so many cases it is by far the major issue of the term for the Court when it comes to the criminal justice system. Look for a ruling around the end of the year.

Around the end of the year is when the Justices will tackle the issue of state-sanctioned medical marijuana use and its relationship with a federal statute that criminalizes pot smoking. California (and other states) permit marijuana use for medical purposes but the feds, under the direction of Attorney General John Ashcroft, have been arresting medical marijuana users and growers there. The question for the Court is: which jurisdiction prevails? Does Congress have the power to trump a state law like this with a federal one? Or does the federal statute violate the Commerce Clause of the Constitution, which prohibits federal laws that intrude upon purely intrastate activities? Maybe it is a good thing that the Justices will hear and decide this case after the upcoming election.

One case that will be heard before the election has to do with juvenile offenders and the death penalty. A few terms ago, the Justices ruled that the Constitution precluded as "cruel and unusual punishment" the execution of mentally retarded defendants. Now the question before the Court is whether the same analysis applied by the Court's majority in that case ought to apply to bar executions of murderers who were under the age of 18 when they committed their crimes. Only a few states still permit the practice and those opposed to it say that there is now a "national consensus" against capital punishment for juvenile offenders. We'll see. Just because the Court found a statewide consensus in one area of capital punishment law doesn't guarantee that they'll find another consensus when it comes to teenage murderers.

Then there are a gaggle of second-tier cases — some interesting, some worthy even of a chuckle, and some downright heartbreaking — that the Justices will hear and decide this term. There are two cases involving the shipment of wine and liquor. There is the usual assortment of search-and-seizure and traffic stop cases. (Can guard dogs be used in routine traffic stops?) There is a case about firearms and felons that will be heard on the day after the presidential election. There is an interesting case between Colorado and Kansas about water rights. And there are a few cases involving immigration issues that have newfound importance since Sept. 11, 2001.

There are some tax cases and a railroad liability case and a maritime liability case. There is an environmental case and a bankruptcy case and a trademark case and a case about the Truth in Lending Act. There is a Title IX case involving claims of discrimination at a high school. There is an age discrimination case and two cases about Native American rights. And just last week the Court accepted an important case about the public taking of private property.

Before the term is through, the Court will hear and decide dozens of additional cases. But it's probably a good idea to wait until after Nov. 2 to determine just how busy the Justices will be this term — and what they will long be remembered for when it is through.

By Andrew Cohen