Storm Center

The year ahead in the Supreme Court.

Supreme Court terms are like hurricane seasons. Some years, inexplicably, there are more storms than usual and some storms are bigger than others. The new term, which by tradition begins today—the first Monday in October—promises to be relatively quiet with no Category 5 cases on the radar, although we still have a long way to go until the end of the term in June.

This is also an election year, so reporters and pundits—and direct-mail fund-raisers of opposing political persuasions—are back on their four-year cycle of hyping how the November presidential election could change the Supreme Court. But the court’s membership has been remarkably stable: William H. Rehnquist has been chief justice since 1986, and the last appointee was Stephen G. Breyer back in 1994. Some of the justices are at the age, however, at which members of the press circle overhead like vultures: especially John Paul Stevens (84); William H. Rehnquist (80); Sandra Day O’Connor (74); and Ruth Bader Ginsburg (71). Resignations and retirements usually are announced at the end of the term. If there is an opening, that will be the biggest story of the year because the next Supreme Court nomination and confirmation will be downright apocalyptic—no matter who wins the election—given the spiraling acrimony between the Democrats and Republicans over judicial appointments.

Of course, the possibility that the Supreme Court could change the presidential election is no longer so far-fetched. One could imagine a Kerry v. Bush (2004) sequel to Bush v. Gore in a too-close-to-call election, in some contested state like Ohio. Or even in Florida again, for that matter, given its recent luck with hurricanes.

Each year, the Supreme Court decides only about 80 cases out of about 8,000 petitions for review—”petitions for a writ of certiorari” in the lawyer’s Latin for “bring the case here.” Cases are selected for their national importance or to resolve a conflict among lower courts. Thus far, the justices have filled a little over half of their dance card for the year, so about 30 more cases will be added between now and January—and some of them could be huge. Here are some of the more interesting ones already on the docket.

The first appellate argument of the new term warrants a rare two-hour argument over the federal sentencing guidelines in what may be a do-over for a decisionmade last June. In Blakely v. Washington, the high court struck down Washington state’s sentencing guidelines for allowing a judge, instead of a jury, to decide facts that were relied on to enhance a prison sentence. Justice O’Connor, who dissented, later called it a “No. 10 earthquake” because there are similar provisions in the federal guidelines as well as the guidelines in many of the states. Lower courts around the country went crazy this summer trying to figure this out. The seismic problem is that tens of thousands of criminal sentences might be affected. An interesting sidelight in these cases is whether Justice Breyer will recuse himself because he served on the U.S. Sentencing Commission that first promulgated the federal guidelines. Whether or not to recuse is entirely up to the individual justice, however. Just last year, you’ll recall that Justice Scalia stepped aside in the Pledge of Allegiance case after making public statements about the issue but then refused to step aside in a case involving the vice president after they had gone duck-hunting together.

The death penalty is back before the court in several cases, the most curious of which presents the issue of whether a killer’s “born again” conversion, after the murder but before his trial, must be considered as mitigation by the jury. In another case, the constitutionality of executing juveniles is back with a strange procedural twist. In 1989, the U.S. Supreme Court held by a narrow 5-to-4 vote that executing a 17-year-old murderer was not cruel and unusual based on the age of the defendant alone. This time, the Missouri Supreme Court determined that since then a new national consensus has emerged against executing anyone under age 18, pointing to some recent statutes and statistical trends in the states. This holding had the practical effect of “overruling” the U.S. Supreme Court, something a state court simply cannot do, even if it thinks it is doing God’s work. (Only God can overrule the Supremes.) The case also will likely be the occasion to renew an intellectual debate among the justices over whether constitutional law from other countries—all Western democracies have outlawed the death penalty, and executing juveniles is almost universally disapproved around the world—should be imported into the United States. Justices O’Connor, Kennedy, Ginsburg, and Breyer are devotees of comparative constitutional law; Justices Scalia and Thomas believe that American constitutional law has to be “made in USA” and have absolutely no interest in foreign imports.

The “commerce clause” of the federal Constitution, which created a national common market and empowers Congress to regulate it, is featured in two interesting cases this term. In the first, Michigan and New York, like many other states, prohibit out-of-state wineries from shipping their wines directly to in-state customers. Generally, such state discrimination against out-of-staters automatically violates the commerce clause, but the states are playing their 21st Amendment card. That provision repealed the 18th Amendment’s “Great Experiment” with Prohibition and returned to the states the power to regulate alcohol. The court thus is obliged to reconcile Bill Gates’ Internet with James Madison’s palimpsest. 

In the second commerce clause case, the 9th Circuit had to be taking long bong hits to rule that the federal drug laws cannot be applied to the nonprofit production and distribution of marijuana for “medical” use. California and nine other states have legalized marijuana for medical users who are under a physician’s care for various chronic and serious conditions, but pot is an illegal controlled substance under federal law. The justices are likely to get off on their long-established precedents favoring federal power over state power and rule for the feds. The case will require the Rehnquist Court to harmonize two of its leitmotifs: federal pre-emption of conflicting state laws and judicially enforceable limits on congressional power.

A couple of First Amendment cases round out this list of coming attractions. Johnnie Cochran, of O.J. Simpson-circus fame, got a permanent court injunction against one of his former clients, prohibiting protests outside his law office that criticized his lawyerly ability—the new Cochran motto apparently being: “If you picket, you’ll get a ticket.” The court cannot seem to get rid of free speech challenges to those mandatory government-promotion programs that tax the producers to advertise their generic product. Following a pair of confusing cases brought on similar arguments by fruit-growers who lost and by mushroom farmers who won, this time the complaint comes from cattle producers who have a constitutional beef with those “Beef, it’s what’s for dinner” promotional ads, because the ads do not endorse Bovine-American beef over foreign beef.

The rest of the docket looks like a typical Supreme Court menagerie of cases. A few representative samples: drug-sniffing dogs at traffic stops; retirement benefits for U.S. spies (someone named “John Doe”); a Somalian refugee convicted of a felony who does not want to go back; families trying to keep their homes from being taken by the county government and given to private developers in the name of progress and “economic development”; a Libertarian Party challenge to state restrictions on primary voting; racial segregation in a state prison; a male high-school coach who was fired for complaining about the lack of funding for girls’ athletics; whether foreign cruise ships docking in the United States must provide accommodations to the disabled; and a dispute between Kansas and Colorado over the river that runs between them.

Just another day at the office (chambers) for the justices.

Justice Oliver Wendell Holmes Jr. once remarked about the Supreme Court, “We are quiet here, but it is the quiet of the storm center.” The nine justices go about deciding constitutional cases deliberately, making every effort to get them right. They often disagree among themselves, and we can expect to disagree with them just as often. But this is not just some academic debate in a salon. These cases are brought by real, flesh-and-blood people, and how the justices decide them affects our nation and our lives. That makes it all the more important and interesting to track their decisions.