A term to remember.

The Supreme Court's new term, which began in October, will be one to remember. Newly appointed Chief Justice John Roberts began his tenure, and a second new justice--perhaps Samuel Alito--may join the Court this year. The term also features many important cases on a range of issues: criminal law and procedure, abortion rights, federalism, and freedom of speech.

Criminal law and procedure

For lawyers who handle criminal trials, few Supreme Court decisions have been more momentous than Crawford v. Washington, in which the Court overruled its own earlier decisions to hold that introducing testimony against a defendant who has no opportunity to cross-examine a witness violates the Confrontation Clause of the Sixth Amendment. (1) The Crawford decision changed the law of evidence for every criminal case in every court in the country. In effect, the justices said courts can no longer use "testimonial" statements simply because a witness is unavailable.

In the year and a half since the Court decided Crawford, lower courts have struggled to define what evidence is "testimonial." In a pair of cases this term, the Court will take up that question for the first time. In Davis v. Washington, the Court will consider whether statements made during a 911 emergency call are testimonial. (2) In Hammon v. Indiana, it will decide whether a victim's oral statements to a police officer constitute this type of evidence. (3) These cases could provide urgently needed clarification and affect countless criminal cases.

The Court will also take up several important Fourth Amendment cases. In Georgia v. Randolph, the question is whether one occupant of a dwelling may give the police consent to search common areas of the premises, even though another occupant is present and objects to the search. (4)

In United States v. Grubbs, the Court will consider the procedural requirements when the police receive an anticipatory warrant that allows a search when certain conditions are met. (5) For example, if the police ask for a search warrant based on the condition that certain people be found present at a location, need the warrant itself state the conditions?

One criminal case certain to receive widespread media attention is House v. Bell, which concerns what constitutes "sufficient evidence to show a likelihood of innocence." (6) The petitioner in this case, Paul Gregory House, was found guilty of first-degree murder and sentenced to death. At trial, the prosecutor had argued that semen on the victim's clothes showed that she had been raped, and that rape was both a motive for the murder and the key aggravating circumstance warranting the death penalty.

But during habeas corpus proceedings, the defense introduced powerful evidence that House was innocent: DNA tests revealed that the semen was from the victim's husband, meaning there had been no rape.

The prosecutor stressed that the victim's blood had been found on the defendant's jeans. The defense showed that the jeans were stored in an evidence drawer along with vials of the victim's blood, and that one of the vials spilled. House's lawyers also found two witnesses who testified that they had heard the victim's husband admit to the murder.

The Sixth Circuit, in an 8-7 en banc decision, affirmed the denial of habeas corpus, saying that the evidence was insufficient to show a likelihood of actual innocence. Interestingly, the judges split along party lines: The eight judges in the majority were all appointed by Republican presidents; the seven dissenters by Democratic ones.

Abortion rights

No area of law is more controversial or divisive than abortion rights. In Ayotte v. Planned Parenthood, (7) the Court will consider the constitutionality of a New Hampshire law requiring unmarried minors to notify their parents before they have an abortion. The First Circuit declared the law unconstitutional because it has no exception for situations where notification might endanger the young woman's health.

The underlying issue is how courts should analyze restrictions on abortion: either by traditional analysis of the law's facial constitutionality, which requires the challenger to prove that there are no circumstances in which the law can be applied constitutionally; or by focusing on whether the law imposes an undue burden on certain groups (for example, in this case, on girls whose health requires an immediate abortion).

The other abortion rights case on the Court's docket this term is Scheidler v. National Organization of Women. (8) Twenty years ago, the National Organization of Women (NOW) sued the antiabortion group Operation Rescue and its leaders under the federal RICO Act for obstructing access to abortion clinics. This is the third time this question has come before the Supreme Court, and this time, the Court will focus on whether the federal Hobbs Act (9) should apply to acts or threats of violence, or only to extortion or robbery. The case also raises the question of whether injunctive relief is available in a private civil suit brought under RICO.

Federalism

The Rehnquist Court's greatest changes to the law involved federalism--in particular, narrowing Con gress's powers and expanding sovereign immunity. One case, Gonzales v. Oregon, (10) asks whether the federal government may prevent implementation of Oregon's Death with Dignity Act, an initiative passed by voters that allows physician-assisted suicide. At the time it passed, then-U.S. Attorney General John Ashcroft issued a directive, under a provision of the federal Controlled Substances Act, that the federal government would suspend prescription privileges for any Oregon physicians who performed assisted suicide.

The Ninth Circuit invalidated Ashcroft's directive, holding that regulation of physicians' behavior traditionally has been left to the

states and that the specific provision of the Controlled Substances Act is aimed at doctors who write prescriptions for illegal reasons and shouldn't be applied to cases of assisted suicide.

The other two federalism cases involve sovereign immunity. In Central Virginia Community College v. Katz, the Court will decide whether Congress may authorize lawsuits against state governments in bankruptcy court proceedings. (11) In United States v. Georgia, the Court will consider whether sovereign immunity bars suits against state governments by prisoners suing under Title II of the Americans with Disabilities Act. (12)

One of the most interesting--and difficult--federalism cases will be DaimlerChrysler v. Cuno, which asks whether state and local governments can use tax breaks to entice out-of-state businesses to locate within the governments' boundaries. (13) The practice is pervasive; the question is whether it violates the Dormant Commerce Clause. On one hand, the clause limits a state's ability to discriminate against outsiders. Laws that induce nonresidents to move in clearly do not offend this principle. On the other hand, the Dormant Commerce Clause aims to prevent aggressive competition between and among states, which is exactly what the tax breaks at issue in Cuno do.

First Amendment

In Rumsfeld v. Forum for Academic and Institutional Rights, (14) the Court will consider the constitutionality of the Solomon Amendment, which requires law schools to allow military recruiters on campus or face the loss of federal funds. (15) Most law schools refuse to let military recruiters use their career services offices, because of school policies that prohibit allowing this use to prospective employers who discriminate (as the military does) against gays and lesbians. The Third Circuit declared the Solomon Amendment unconstitutional because it compels speech and association.

In Garcetti v. Ceballos, the Courtwill revisit government employees' speech rights. Richard Ceballos, a deputy district attorney in Los Angeles, claimed he suffered adverse employment action by the city after he told the defense in a case that an affidavit crucial to the state's case contained false statements. (16) The question the Court will take up is whether the First Amendment protects such statements and makes the city's alleged retaliation unconstitutional.

The Court also returns to campaign financing this term. In Randall v. Sorrell, it will consider whether state governments may impose spending limits on local candidates. (17) Wisconsin Right to Life v. Federal Election Commission will raise the constitutionality of restricting contributions by corporations that exist for ideological reasons. (18)

Justice Byron White once remarked that there is a different Court every time there is a new justice. The current term will be the first occasion to assess the new justices and Court. The docket's interesting, important cases should provide insight into the Court's newest members and suggest how they may vote on critical issues in the years ahead.

Notes

(1.) 124 S. Ct. 1354 (2004).

(2.) 111 P.3d 844 (Wash. 2005) (sub nom. State v. Davis), cert. granted, 2005 WL 1671669 (U.S. Oct. 31, 2005) (No. 05-5224).

(3.) 829 N.E.2d 444 (Ind. 2005) (sub nom. Hammon v. State), cert. granted, 2005 WL 1914510 (U.S. Oct. 31, 2005) (No. 05-0705).

(4.) 604 S.E.2d 835 (Ga. 2004) (sub nom. State v. Randoff), cert. granted, 125 S. Ct. 1840 (2005).

(5.) 377 F.3d 1072 (9th Cir. 2004), cert. granted, 126 S. Ct. 34 (2005).

(6.) 386 F.3d 668 (6th Cir. 2004), cert. granted, 125 S. Ct. 2991 (2005).

(7.) 390 F.3d 53 (1st Cir. 2004) (sub nom. Planned Parenthood v. Heed), cert. granted, 125 S. Ct. 2294 (2005).

(8.) 396 F.3d 807 (7th Cir. 2005) (sub nom. Operation Rescue v. National Organization of Women), cert. granted, 125 S. Ct. 2991 (2005). I am counsel of record for the National Organization of Women and argued this case on its behalf before the Supreme Court.

(9.) 18 U.S.C. [section] 1951 et seq.

(10.) 368 F.3d 1118 (9th Cir. 2004) (sub nom. Oregon v. Ashcroft), cert. granted, 125 S. Ct. 1299 (2005).

(11.) 106 Fed. Appx. 341 (6th Cir. 2004)(sub nom. In re Wallace's Bookstore, Inc.), cert. granted, 125 S. Ct. 1727 (2005).

(12.) 120 Fed. Appx. 785 (11th Cir. 2004), cert. granted, 125 S. Ct. 2256 (2005).

(13.) 386 F.3d 718 (6th Cir. 2004), cert. granted, 125 S. Ct. 36 (2005).

(14.) 390 F.3d 219 (3d Cir. 2004), cert. granted, 125 S. Ct. 1977 (2005).

(15.) I am one of the named plaintiffs in this lawsuit.

16. 361 F.3d 1168 (9th Cir. 2004), cert. granted, 125 S. Ct. 1395 (2005).

(17.) 382 F.3d 91 (2d Cir. 2002) (sub nom. Landellv. Sorrell), cert. granted, 125 S. Ct. 1395 (2005).

(18.) 2005 U.S. App., 2004 WL 1946452 (D.C. Cir. 2004), cert. granted, 126 S. Cr. 36 (2005).

ERWIN CHEMERINSKY is Alston & Bird Professor of Law and Political Science at Duke University. He wishes to thank Kimberly Kisabeth, Sarah Kline, and Garrick Sevilla for their excellent research assistance.