U.S. Supreme Court
Oct. 1, 2007
The Supremes
Although there are many important cases on the Supreme Court's docket, at this point few involve hugely divisive issues. That will surely change as the Court grants review in about 40 more cases this term.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
The U.S. Supreme Court kicks off the 2007 term this month with a remarkably sparse docket. Last term, which ended on June 29, it decided just 68 cases?the fewest number in many decades. The Court was able to consider 68 cases only by "borrowing" from the coming term's docket. In January, the Court granted review in a flurry of cases and ordered expedited briefing and argument so that they could be heard and decided by the end of June. As a result, the Court is significantly behind in granting review?even compared to last year's small docket?and likely will have to cancel several days of argument in December. Usually about half the docket for the next term is set by the time the Court adjourns in June, but so far this term, it has granted review in only 25 cases.
Even so, the term already promises to be quite important: Pending cases concern the rights of Guantanamo detainees, criminal procedure, and employment law.
THE MILITARY COMMISSION ACT
In one case that will be argued this term, the Court will be asked to decide whether it is constitutional for a federal law to preclude those held as enemy combatants from bringing a writ of habeas corpus to federal court. The Military Commission Act of 2006 (120 Stat. 2600) provides that noncitizens detained as enemy combatants shall not have access to federal court via a writ of habeas corpus. Instead, they must go through military proceedings and then seek review in the U.S. 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 Military Commission Act creates express authority for military commissions and defines their procedures. However, it does not require that the government actually convene them. Noncitizens can be held indefinitely without military proceedings or access to federal courts.
In February 2007, the D.C. Circuit upheld the constitutionality of the Military Commission Act, rejecting a challenge that it was an unconstitutional suspension of the writ of habeas corpus for those being detained at Guantanamo Bay, Cuba. (Boumediene v. Bush, 476 F.3d 981 (2007).) In a rare move, after initially declining to hear the case, the Supreme Court reversed itself and granted certiorari. (No. 07-1195; 127 S. Ct. 3078 (2007).) Although usually it takes only four votes of the justices to grant certiorari, five votes are required once the Court denies review.
The issue in this case is of enormous importance, especially for the individuals who have been detained at Guantanamo since 2002.
SENTENCING GUIDANCE
In United States v. Booker (543 U.S. 220 (2005)), the Supreme 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 were to be considered advisory, not mandatory?and directed federal courts of appeal to review sentences to determine if they are reasonable. The courts have struggled with applying this ever since.
Two cases on the Court's docket should provide needed guidance. In Gall v. United States (No. 06-7947; cert. granted, 127 S. Ct. 2933 (2007)), it will consider whether federal district courts must justify their departures from the Sentencing Guidelines and, if so, what justifications are needed. The case will be argued on October 2.
In Kimbrough v. United States (No. 06-6330; cert. granted, 127 S. Ct. 2933 (2007)), also slated for argument that day, the issue is whether a district court may consider the sentencing commission guideline that 1 gram of crack cocaine equals 100 grams of powder cocaine when imposing a sentence for a drug-related crime. The federal sentencing statute (28 U.S.C. § 3553(a)) requires that federal courts impose a sentence that is "sufficient but not greater than necessary." The disparity in sentencing has a significant racially discriminatory impact, as crack cocaine is more commonly used among African Americans and Latinos and powder cocaine is more frequently used by whites.
JURY SELECTION AND RACE
Another important criminal case, this one focusing on racial discrimination in jury selection, is Snyder v. Louisiana (No. 06-10119; cert. granted, 127 S. Ct. 3004 (2007)). There, in a Louisiana case against an African American man accused of fatally stabbing his wife's male companion, a prosecutor used peremptory challenges to strike all of the African Americans from the jury.
At a hearing prior to the voir dire, the prosecutor spoke of the O. J. Simpson case in asking for admission of the defendant's record concerning domestic violence. The defendant moved to preclude such references, and the prosecutor promised not to mention the Simpson case at trial. However, in closing argument, the prosecutor did mention the case?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, and rejected the defendant's claims that there was impermissible racial discrimination in jury selection and prejudicial arguments made by the prosecutor. The case should provide an important clarification of what is sufficient to prove an equal-protection violation in jury selection.
WORKPLACE RIGHTS REVISITED
In Federal Express Corporation v. Holowecki (No. 06-1322; cert. granted, 127 S. Ct. 2914 (2007)), the Court will consider whether filing an intake questionnaire with the Equal Employment Opportunity Commission (EEOC) suffices as a charge meeting the statute of limitations in discrimination cases. Title VII generally requires that complaints be filed with the EEOC within 180 days of the discriminatory act. This case raises the important question of what precisely is sufficient to meet this requirement.
And in Sprint/United Management Co. v. Mendelsohn (No. 06-1221; cert. granted, 127 S. Ct. 2937 (2007)), the Court will consider whether a trial court in a discrimination case must admit evidence of others who are not parties in the case but who were allegedly discriminated against because of the same policy. In the case, Ellen Mendelsohn alleged that she was impermissibly discriminated against because of her age as part of Sprint's policy of discriminating against employees older than 51. She sought to present evidence of five other individuals who claimed similar discrimination. Sprint succeeded in excluding the evidence on the ground that the others had been terminated by a different supervisor. The Supreme Court will need to decide whether the district court erred in excluding this evidence.
Erwin Chemerinsky (chemerinsky@law.duke.edu) is the Alston & Bird Professor of law and political science at Duke Law School. He thanks Lydia Furst, Patricia Sindel, and Lei Zhang for their assistance with this article.
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Megan Kinneyn
Daily Journal Staff Writer
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