Too-close-to-call cases at Supreme Court

In this term, beginning Monday, several key cases could hinge on one justice.

– It is called the Supreme Court, but this year in key cases the institution might just as well be called the supreme realm of Justice Anthony Kennedy.

Such is the power of the centrist swing voter among eight other justices who often split 4 to 4 on the most contentious disputes in the nation. After nearly two decades on the high court, Justice Kennedy has never been more important and powerful, and – in the view of some – dangerous.

Liberals fear him. Conservatives distrust him. But all eyes will be on Kennedy as the court opens its 2007-08 term Monday with a string of major cases on the horizon that appear headed for 4-to-4 deadlocks.

Among them is a dispute over gun rights in Washington, D.C., a battle over the legal rights of terror suspects at the Guantánamo detention center, and a challenge to the president's power to order state judges to uphold international court rulings.

In addition, the high court will examine whether execution by lethal injection in Kentucky is a form of cruel and unusual punishment, and whether the Constitution forbids Indiana from requiring voters to produce photo identification prior to casting a ballot.

The same internal dynamics among the justices that produced a string of conservative victories on abortion, affirmative action, and campaign finance last term will again be on full display. But this term, Kennedy's positions on pending cases are less clear.

Some analysts say the highest-profile cases this year are likely to bring a broader mix of both liberal and conservative victories. But several of the cases appear too close to call, court watchers say.

One of the most anticipated cases involves a landmark legal dispute over the meaning of the Second Amendment right to keep and bear arms. The justices are being asked to decide whether this is an individual right that belongs to the people or a collective right bestowed by the states through organized militias.

The court has not yet agreed to take up the issue, but many constitutional scholars believe it soon will. If so, it would mark the first time since 1939 that the Supreme Court has examined the meaning of the Second Amendment.

Two related cases, District of Columbia v. Heller (07-290) and Parker v. District of Columbia (07-335), involve challenges to gun-control laws in the nation's capital. The disputes will take the justices back to the drafting of the Bill of Rights and the foundations of the republic, analysts say.

"This is 1791 for the Second Amendment," Georgetown Law Center Prof. Nicholas Rosenkranz told a recent conference at the Cato Institute in Washington.

Among cases already on the court's docket, one of the most important involves terror suspects at Guantánamo Bay and to what extent they are entitled to challenge their open-ended detention as enemy combatants.

Lawyers for the detainees filed habeas corpus petitions asking federal judges in Washington to examine the legality of their clients' continued confinement. The Bush administration says that because the detainees are foreign enemy combatants being held outside the United States, they are not entitled to the protections of habeas corpus. In 2006 Congress, then controlled by Republicans, passed a law that stripped federal judges of jurisdiction to hear cases brought on behalf of detainees at Guantánamo.

When lawyers for the detainees first asked the Supreme Court to take up the issue, the justices refused. Then, in a highly unusual move, the justices agreed three months later to hear the appeal. This has led to speculation that the court is primed to overturn an earlier federal appeals court ruling upholding the Bush administration's position and the 2006 law.

Some analysts go even further. "The court took this case to make a larger statement of who we are as a people," says Neal Katyal, a law professor at Georgetown Law Center, who also represents a Guantánamo detainee in a pending case.

Professor Katyal, speaking on a recent panel at Georgetown, said the court will probably rule that fundamental rights apply at Guantánamo. "I expect a broader holding than we have had in the past," he added.

Supporters of the Bush administration say the court is unlikely to take such a dramatic step – even six years after the 9/11 attacks. The US is still at war, they say.

The cases are Boumediene v. Bush (06-1195) and Al-Odah v. US (06-1196).

A Texas death-penalty case is providing a forum for the high court to confront a series of fundamental questions about the scope of presidential power to direct state judges to enforce international court rulings. At issue in Medellín v. Texas (06-984) is whether José Medellín, a Mexican national on death row, should receive a hearing to examine the fairness of his conviction and death sentence.

As a Mexican national, Mr. Medellín had a right to contact the Mexican consulate at the time of his arrest for the gang-rape and murder of two girls. Texas authorities failed to notify him of this right and failed to notify the Mexican consulate of the arrest. Both failures violate an international treaty, and the International Court of Justice (ICJ) later ruled that Medellín must be given a hearing to assess the level of prejudice to his case from the treaty violations.

President Bush issued a memorandum in February 2005 directing the Texas courts to give effect to the ICJ ruling. Rather than ordering a new hearing, the Texas courts found that nothing under Texas law required that Medellín be granted a new hearing because of the treaty violations.

Lawyers for Medellín say the president's memo and the ICJ ruling must be treated as federal law that preempts state law.

Texas Solicitor General R. Ted Cruz says that Mr. Bush's memo amounts to a suggestion, not a command. "State courts don't work for the president," he says.

The president does not have unilateral power to set aside state law, Mr. Cruz told a recent gathering of the Federalist Society in Washington. He added that the White House's position in the case "works a dramatic change in the power of the presidency."

The case touches on the balance of power between the national and state governments, the authority of the White House versus the state judiciary, the authority of the president versus Congress, and whether a ruling of an international court preempts state and federal law.

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Also on the docket this term

•Baze v. Rees (07-5439): Does Kentucky's procedure for carrying out executions by lethal injection carry too high a risk of inflicting pain and thus amount to cruel and unusual punishment?

•Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25): Does a state law requiring voters to produce government-issued photo identification to cast a ballot violate the free speech and equal rights of voters?

•Stoneridge Investment v. Scientific Atlanta (06-43): In the wake of major financial fraud at a publicly traded company, can investors sue vendors to that company who may have been aware of the fraud at an early stage but kept silent? (Only eight justices will consider this case, following the recusal of Justice Stephen Breyer.)

•Kimbrough v. US (06-6330): Do sentencing judges have the authority to reject the much-criticized 100-to-1 ratio in the federal sentencing guidelines for amounts of crack cocaine versus powder cocaine, even though Congress has declined to change the ratio?

•US v. Williams (06-694): Does the latest effort by Congress to police child pornography on the Internet violate the First Amendment by outlawing the exchange of materials that some individuals might believe are child pornography but that aren't actually child pornography?

•Federal Express v. Holowecki (06-1322): Must an age-discrimination lawsuit be thrown out because the employee failed to use the correct legal form to file her complaint with the Equal Employment Opportunity Commission?

•Sprint v. Mendelsohn (06-1221): Can a plaintiff in an age-discrimination lawsuit rely on testimony of others at the same company who say they were subject to similar discrimination, even though they worked for a different supervisor?

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