Justices begin another blockbuster year.

The October 2004 Supreme Court term is the 11th that the current nine justices have served together. The past decade represents the second-longest period in U.S. history without a vacancy on the Court and the longest since the early 19th century. Even with half the docket for the current term remaining to be set--the Court will continue to grant review in cases for this year until early January--this promises to be a year marked by blockbuster decisions.

Each of the Court's previous 10 terms has been marked by rulings that resolved major legal questions and received wide-spread coverage in the press. That trend will continue this year.

Already on docket are cases concerning whether Congress can prohibit medical use of marijuana, whether the Federal Sentencing Guidelines are constitutional, whether the death penalty for crimes committed by juveniles is cruel and unusual punishment, and whether racial segregation of prisoners violates equal protection. (1)

Federalism

When historians look back at the Rehnquist Court's decisions, they will no doubt say that it effected the most change in the area of federalism. Over the past decade, and particularly over the last five years, the Court has dramatically limited the scope of Congress's powers under the Commerce Clause and [section]5 of the Fourteenth Amendment (2) and has reinforced state sovereign immunity. (3)

This term, the Supreme Court will revisit the issue of state sovereignty yet again. In Ashcroft v. Raich, the Court will consider whether the Controlled Substances Act exceeds the scope of Congress's authority under the Commerce Clause when it is applied to marijuana grown within a state for personal medicinal use or distribution without charge. (4) Simply put, does the government have the power to criminally punish those who grow marijuana for their own use for medical purposes?

The case is fascinating, in part because the usual ideological positions on federalism may be reversed. Conservatives, who applaud limiting Congress's commerce power, probably will be inclined to support federal power to regulate drugs; but progressives, who generally disagree with recent decisions limiting Congress's commerce power, will want to restrict federal authority to prohibit medical use of marijuana.

In Swedenburg v. Kelly, the Court will consider a federalism issue of a very different sort: the power of state governments to regulate interstate commerce. (5) The question is whether a state violates the "dormant" Commerce Clause when it allows in-state wineries to ship alcoholic beverages directly to consumers but prohibits out-of-state wineries from doing so.

Criminal law and procedure

As always, many of the most important cases on the docket concern the rights of criminal suspects and defendants. In an unusual move in August, the Court ordered expedited briefing and set oral argument on the term's first day for two cases concerning the constitutionality of the Federal Sentencing Guidelines. The issue in United States v. Booker (6) and United Stales v. Fanfan (7) is whether the guidelines are constitutional in light of the Court's ruling last year in Blakely v. Washington. (8)

In Blakely, the Court ruled that any factors a judge uses to impose a sentence greater than what the guidelines call for, given a jury's verdict or a defendant's admissions, must be proven to a jury beyond a reasonable doubt. In Booker, for example, after a defendant was convicted of possessing 50 grams of cocaine with intent to distribute, the trial judge found by a preponderance of the evidence that the defendant had actually possessed more of the drug and had obstructed justice. The judge then imposed a sentence that was harsher than the one the guidelines dictate for the crimes the defendant was convicted of. Citing Blakely, the Seventh Circuit reversed.

Few decisions have created as much immediate turmoil as Blakely, and the Supreme Court, by agreeing to review Booker and Fanfan at the beginning of this term, has acted quickly to clarify the implications of that ruling for the Federal Sentencing Guidelines.

A case that is sure to receive a great deal of media attention is Roper v. Simmons, which asks the Court to consider whether executing an adult who was 17 years old at the time he or she committed a murder is cruel and unusual punishment. (9) Two years ago, in Atkins v. Virginia, the Court held that executing mentally retarded people violates the Eighth Amendment. (10) Following the reasoning in that case, the Missouri Supreme Court held in Roper that imposing the death penalty for crimes committed before a person turns 18 is also unconstitutional.

Another important criminal-procedure issue before the Court this term concerns a defendant's right to counsel on appeal. In 1994, Michigan voters amended the state constitution to eliminate appeals as of right for criminal defendants who plead either guilty, guilty but mentally ill, or nolo contendere. Such defendants must petition for permission to file an appeal, but even if the appeal is allowed, state law generally precludes the appointment of counsel. In Kowalski v. Tesmer, the Court will consider whether there is a constitutional right to a first, discretionary appeal and also whether criminal defense attorneys have third-party standing to raise this issue on behalf of future indigent criminal defendants. (11)

Last term, the Court decided seven Fourth Amendment cases. This year, it will consider several more. In Muehler v. Mena, the Court will determine whether police officers can detain and question a person who is not suspected of any crime but happens to be in someone else's house when it is searched. (12) Also, the Court will consider whether additional questioning, beyond the scope of the search, is limited by the Fourth Amendment.

Illinois v. Cabralles asks the Court to decide whether the Fourth Amendment requires reasonable, articulable suspicion to justify using drug-detection dogs to sniff a vehicle during a legitimate traffic stop. (13) Although police commonly use drug-sniffing dogs, this will be one of the first occasions the Court has had to consider how the Fourth Amendment limits this practice.

Finally, in a fascinating double jeopardy case, Smith v. Massachusetts, the Court will address whether the constitutional prohibition against successive prosecutions is violated when a judge unequivocally rules that the defendant is not guilty because the prosecution's evidence is insufficient, but later reverses that finding and the defendant is then convicted. (14)

Immigration 

When, if at all, may the government indefinitely detain noncitizens? In 2001, in Zadvydas v. Davis, the Supreme Court held that the Immigration and Naturalization Service cannot indefinitely detain noncitizens who were ordered deported after being in the United States legally, but who could not be repatriated to their home countries. (15) Zadvydas was decided just weeks before September 11, 2001. If the case had come before the Court after that day, the government probably would have argued that the power to detain noncitizens is an important aspect of the war on terrorism.

That argument may affect the outcome of two cases that have been consolidated for argument this term--Crawford v. Martinez (16) and Benitez v. Mata. (17) At issue is the permissibility of indefinitely detaining people who never lawfully entered the country.

Specifically, the Court is being asked to consider whether the government may detain indefinitely about 1,700 Cubans--part of a much larger group who came to the United States in the so-called Mariel boat lift of 1980--who were stopped at the U.S. border and granted immigration parole into the country.

Discrimination

One of the most interesting--and perhaps most difficult--cases for the Court to decide is Johnson v. California. (18) It asks whether a state violates prisoners' equal protection rights by routinely segregating them on the basis of race for at least 60 days after their arrival at the prison. The Court will need to consider how equal protection applies in the prison context and whether this is one of the rare situations in which the government may make decisions based solely on a person's race.

In Smith v. City of Jackson, the Court will consider whether disparate-impact employment discrimination claims may be brought under the Age Discrimination in Employment Act. (19) This is an issue that long has divided the circuits, and its resolution will have a major impact on litigation under this statute.

It is impossible at the beginning of a Supreme Court term, when only half the docket is set, to fully anticipate what is to come. Last year, for example, the Court did not grant review in the important cases concerning civil liberties and the war on terrorism until December. The year before, the major cases concerning affirmative action in higher education were accepted for review in November. But even with only half the docket set, it is safe to predict that this term will be another filled with blockbuster rulings.

Notes

(1.) Before the Court adjourned for its summer recess on June 30, 2004, it had granted review in 38 cases--about half the number of cases the Court will hear before the next recess. In each of the last two years, the Court decided 73 cases after briefing and oral arguments.

(2.) See, e.g., United States v. Lopez, 514 U.S. 549 (1995) (ruling that federal law prohibiting possession of a gun within 1,000 feet of a school is unconstitutional because it exceeded Congress's Commerce Clause power); United States v. Morrison, 529 U.S. 848 (2000) (striking down the civil damages provision of the Violence Against Women Act because it exceeded the scope of Congress's power under the Commerce Clause and [section]5 of the Fourteenth Amendment).

(3.) Alden v. Maine, 527 U.S. 706 (1999) (ruling that a state government may not be sued without its consent in state court for violation of a federal law).

(4.) 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S. Ct. 2909 (2004) (No. 03-1454).

(5.) 358 F.3d 223 (2d Cir. 2004), cert. granted, 124 S. Ct. 2391 (2004) (No. 03-1274).

(6.) 375 F.3d 508 (7th Cir. 2004), cert. granted, 2004 WL 1713654 (U.S. Aug. 2, 2004) (No. 04-104).

(7.) No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 2004 WL 1713655 (U.S. Aug. 2, 2004) (No. 04-105).

(8.) 124 S. Ct. 2531 (2004).

(9.) 112 S.W.3d 397 (Mo. 2003), cert. granted, 124 S. Ct. 1171 (2004) (No. 03-633).

(10.) 536 U.S. 304 (2002).

(11.) Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003), cert. granted sub nom. Kowalski v. Tesmer, 124 S. Ct. 1144 (2004) (No. 03-407).

(12.) Mena v. City of Simi Valley, 332 F.3d 1255 (9th Cir. 2003), cert. granted sub nom. Muehler v. Mena, 124 S. Ct. 2842 (2004) (No. 03-1423). The author is cocounsel for the respondent, Mena, in this case.

(13.) 802 N.E.2d 202 (Ill. 2003), cert. granted, 124 S. Ct. 1875 (2004) (No. 03-923).

(14.) 788 N.E.2d 977 (Mass. Ct. App. 2003), cert. granted, 124 S. Ct. 2836 (2004) (No. 03-8661).

(15.) 533 U.S. 678 (2001).

(16.) (Unpublished 9th Cir. 2003), cert. granted, 124 S. Ct. 1507 (2004) (No. 03-878).

(17.) 337 F.3d 1289 (11th Cir. 2003), cert. granted, 124 S. Ct. 1143 (2004) (No. 03-7434).

(18.) 321 F.3d 791 (9th Cir. 2003), cert. granted, 124 S. Ct. 1505 (2004) (No. 03-636).

(19.) 351 F.3d 183 (5th Cir. 2003), cert. granted, 124 S. Ct. 1724 (2004) (No. 03-1160).

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law at Duke University School of Law. He wishes to thank Sara Phillips, University of Southern California Law School class of 2005, for her assistance in preparing this article.