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Small docket, big decisions in Court's new term.

The Supreme Court began its October term on the first Monday of last month. The docket that had been set before the justices retired for their summer recess included few blockbusters like the cases that yielded last year's rulings on abortion, school desegregation, and punitive damages. But that could change--and dramatically--as the Court grants review in additional cases.


The new term will reaffirm the Court's preference for a small docket. Most years, the Court sets about half of its docket before adjourning for the summer. This year, it granted review in only 25 cases for the fall term before breaking for the summer and then granted review in 17 more in September. Last term, the justices heard 68 cases--the smallest number in over a half-century. And to reach even that small number, they would have to add another 26 cases to their workload.

But even this thin docket promises major decisions about the rights of Guantanamo detainees, criminal procedure, employment law, and voting rights. The Court may also decide its first case on the Second Amendment and gun control in almost 70 years.

The Military Commission Act

Without doubt, the most important cases this term will be those dealing with the rights of so-called enemy combatants held at the government's detention center in Guantanamo Bay, Cuba. In Boumediene v. Bush and Al-Odah v. Bush, the Court will consider whether it is constitutional for a federal law to preclude these detainees from bringing a writ of habeas corpus to federal court. (1)

The Military Commission Act of 2006 (MCA) states that noncitizens detained as enemy combatants do not have that right. (2) Instead, they must first go through military proceedings and then seek review in the Court of Appeals for the District of Columbia Circuit. That court is limited to hearing claims under the Constitution and federal statutes; it cannot hear claims under treaties such as the Geneva Accords.

The MCA creates express statutory authority for military commissions and defines their procedures. But it does not require the government to actually convene these tribunals, meaning that noncitizens can be held indefinitely, with no military proceedings and no access to federal courts. Since the Constitution prohibits Congress from suspending the writ of habeas corpus except in cases of rebellion or insurrection, the Court must decide whether the act's restrictions on habeas corpus are constitutional.

In February, the D.C. Circuit upheld the constitutionality of the MCA. (3) Attorneys for the Guantanamo detainees asked the Court for expedited review. (4) In April, the Court denied certiorari. (5) Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter dissented, but it takes four votes to hear a case. Justices John Paul Stevens and Anthony Kennedy said the detainees should first go through the military proceedings, return to the D.C. Circuit, and then present their issues to the Supreme Court.

But in June, the Court reversed itself and granted certiorari, scheduling oral arguments for the October term. (6) For the Court to reverse itself and grant review after initially denying it is unusual. In fact, although it usually takes only four votes among the justices to grant certiorari, five votes are required for a reversal.

The issue is of enormous importance. Some people have been detained at Guantanamo since 2002. Many of them have been imprisoned with no access to habeas corpus or the federal courts. When is it constitutional to deny access to the courts? When is it constitutional to suspend the writ of habeas corpus? These questions make these the most critical cases about civil liberties and the war on terrorism since the September 11 attacks.

Criminal procedure

The criminal procedure case that will receive the most media attention is Baze v. Rees, where the court will consider whether the protocol for lethal injection as a form of capital punishment violates the cruel and unusual punishment clause of the Eighth Amendment. (7)

In United States v. Booker, the Court held that to be consistent with the Sixth Amendment's requirements for trial by jury and proof beyond a reasonable doubt, the federal sentencing guidelines must be considered advisory, not mandatory. (8) It also ruled that federal courts of appeals should review sentences to determine if they are reasonable. Federal courts have struggled to apply this ruling ever since.

Two cases on the Court's docket should provide much-needed guidance. In United States v. Gall, the Court will consider whether federal district courts must justify their departures from the federal sentencing guidelines and, if so, what justifications they must supply. (9)

Last year, in Rita v. United States, the Court held that federal courts may accord a presumption of reasonableness to sentences that fall within the federal guidelines, but this presumption is not required and is not binding. (10) If the Court holds in Gall that departures from the guidelines must be justified, there will be little difference between sentencing in federal courts before and after Booker. Booker will be remembered as little more than a formality.

In United States v. Kimbrough, the question is whether a district court imposing a sentence may consider the tremendous--100 to 1--disparity between sentences for possession of crack and possession of powder cocaine. (11) The federal sentencing statute mandates that federal courts impose a sentence "sufficient, but not greater than necessary." (12) How is this to be determined and applied in the context of cocaine sentencing? The sentencing disparity between crack and powder cocaine has a significant racially discriminatory impact, as crack cocaine is more commonly used by African-Americans and Latinos, and powder cocaine is more frequently used by whites.

Another key criminal case focuses on racial discrimination in jury selection. (13) A Louisiana prosecutor, in a murder case against an African-American man, used peremptory challenges to strike all the African-Americans from the jury. In fact, half of the prosecutor's peremptory challenges were used to exclude African-Americans.

At a hearing before the voir dire, the prosecutor invoked the O.J. Simpson case when asking to admit the defendant's record of domestic violence. The defendant moved to preclude such references, and the prosecutor promised not to mention Simpson during the trial. But in closing argument, the prosecutor did just that, and the trial court overruled the defense's objection.

The defendant was convicted by an all-white jury and sentenced to death. The Louisiana Supreme Court affirmed the conviction. It rejected the defendant's claims of racial discrimination in jury selection and the prosecutor's prejudicial arguments.

The case should clarify what is sufficient to prove an equal protection violation in jury selection.

Employment law

The Court will also take up several key employment cases. In Federal Express Corp. v. Holowecki, the question is whether filing an "intake questionnaire" with the Equal Employment Opportunity Commission is sufficient to meet the statute of limitations in discrimination cases. (14)

In Sprint/United Management Co. v. Mendelsohn, the Court will consider whether a trial court in a discrimination case must admit evidence of discrimination against other workers who are not parties to the case but who allegedly were victims of the same discriminatory policy. (15) Ellen Mendelsohn claimed that she was fired as a result of Sprint's alleged policy of discriminating against workers older than 51. She sought to present evidence that five other people had endured similar discrimination.

Sprint succeeded in excluding this evidence on the ground that a different supervisor (not the one named in the case) had fired the other workers. The Court will decide if the district court erred in excluding this evidence.

Voting rights

Another issue that is sure to get headlines this term concerns whether states may require photo identification as a prerequisite for voting. In Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita, the Court will take up the constitutionality of an Indiana requirement that voters show photo identification when they vote in person. (16)

The Seventh Circuit acknowledged the discriminatory impact of such requirements but said that only rational-basis review was appropriate, and it upheld the Indiana law. The case will surely affect similar laws in states across the country.

Gun control

One high-profile case concerns the Second Amendment. As of this writing, there is a petition for a writ of certiorari pending in Parker v. District of Columbia. (17) At issue is the constitutionality of Washington, D.C.'s ban on handgun ownership. The D.C. Circuit, in a 2-1 decision, declared that the law was unconstitutional because it violated the Second Amendment.

There is--to put it mildly--much difference of opinion about the meaning of the Second Amendment. Some courts and scholars have concluded, like the D.C. Circuit, that it protects the right of individuals to possess firearms. (18) But others believe that the Second Amendment means only that Congress cannot regulate firearms to keep states from protecting themselves. (19)

The Supreme Court has not addressed the Second Amendment since 1939, in United States v. Miller, where it took the latter approach. (20) If the Court concludes that there is an individual right to possess guns, it surely will not make this right absolute, and the key question will be what justifications are sufficient to permit regulation. More precisely, what level of scrutiny will be used in reviewing limitations on this right? If the Court grants review in Parker, it definitely will be one of the most closely watched cases of the year.

The Court's last term gave the first clear indication of the Roberts Court's direction. Overall, it moved substantially to the right in many areas. In every case where the Court was ideologically divided, Chief Justice John Roberts and Justice Samuel Alito voted on the conservative side. Kennedy, who was in the majority in all 24 of the Court's 5-4 decisions, was usually with them.

A new term will give us a chance to see if that direction will continue or if the Court will take a different path.


(1.) 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127S. Ct. 3078 (2007).

(2.) Pub. L. No. 109-366, 120 Stat. 2600 (2006).

(3.) Boumediene, 476 F.3d 981.

(4.) I am cocounsel for Salim Gherebi, one of the plaintiffs in Al-Odah, and have represented him since 2002.

(5.) 127 S. Ct. 1725 (2007).

(6.) 127 S. Ct. 3078 (2007).

(7.) 217 S.W.3d 207 (Ky. 2006), cert. granted in part, 2007 WL 2850507 (Oct. 3, 2007).

(8.) 125 S. Ct. 738 (2005).

(9.) 446 F.3d 885 (8th Cir. 2006), cert. granted, 127 S. Ct. 2933 (2007).

(10.) 127 S. Ct. 2456 (2007). See Craig M. Bradley, Resurrecting the Sentencing Guidelines, TRIAL 52 (Oct. 2007),

(11.) 174 Fed. Appx. 798 (4th Cir. 2006), cert. granted, 127 S. Ct. 2933 (2007).

(12.) 18 U.S.C. [section] 3553(a) (West Supp. 2004).

(13.) Snyder v. Louisiana, 942 So. 2d 484 (La. 2006), cert. granted, 127 S. Ct. 3004 (2007).

(14.) 440 F.3d 558 (2d Cir. 2006), cert. granted, 127 S. Ct. 2914 (2007).

(15.) 466 F.3d 1223 (10th Cir. 2006), cert. granted, 127 S. Ct. 2937 (2007).

(16.) 484 F.3d 436 (7th Cir. 2007), cert. granted, 2007 WL 1999963 (Sept. 25, 2007).

(17.) 478 F.3d 370 (D.C. Cir. 2007).

(18.) See e.g. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).

(19.) See e.g. Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2003).

(20.) 307 U.S. 174 (1939).

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law and Political Science at Duke University. He may be reached at He wishes to thank Lydia Furst, Patricia Sindel, and Lei Zhang for their excellent research assistance.
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Title Annotation:Supreme Court Review
Author:Chemerinsky, Erwin
Date:Nov 1, 2007
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