SUPREME COURT TO RETURN TO DIVISIVE ISSUES

Some Of The Kinds Of Cases That Split The Justices In The Past
Term Return In Other Forms

The death penalty, free speech and prison sentences are back on the
agenda, along with new topics such as medical marijuana and
out-of-state wine purchases that are likely to produce significant
disagreement.

Many of the biggest cases last session came down to 5-4 votes and some
justices on the losing end offered harshly worded minority opinions.

Justice Sandra Day O'Connor predicted a disastrous impact from the
court's June ruling limiting judges' roles in sentencing convicted
criminals. "The court ignores the havoc it is about to wreak on trial
courts across the country," she warned in what turned out to be a
prescient statement.

The ruling struck down a state sentencing system and led judges around
the country to invalidate the similar federal system. Some federal
judges started reducing sentences and prosecutors changed the way they
handle cases, putting more information in indictments and revising the
way plea bargains are done.

Justices agreed over the summer to hear arguments on the first day of
the nine-month term in two appeals that will determine if the federal
sentencing system violated defendant's Sixth Amendment right to a jury
trial. The decision will affect many thousands of people.

"Often the court draws back when it looks over the precipice, but I'm
not sure they're going to pull back" on this case, said Chris Landau,
a Washington lawyer and former Supreme Court clerk. "They're not a
timid court."

Justices also were divided 5-4 in a major test last term of the
government's power to control speech. In this case, which upheld major
parts of a campaign finance law, Justice Antonin Scalia complained
that his colleagues caused a tragedy: "This is a sad day for the
freedom of speech."

Washington lawyer Erik Jaffe, a former Supreme Court clerk, said
strong opinions rarely produce long-standing animosity among justices.

"They get annoyed, frustrated or mad or whatever you see expressed in
critically worded opinions. Then they get over it and go to the next
case," he said.

During each term, the Supreme Court hears about 80 appeals, only a
fraction of the nearly 10,000 the justices are asked to consider.

On schedule this year are cases dealing with the rights of immigrants,
the power of the government to prosecute cancer patients who use
marijuana at the recommendation of their doctors and the government's
authority to take private property through eminent domain.

A case sure to elicit strong opinions will be argued this month when
justices are asked to rule on the constitutionality of executing
killers who committed their crimes when they were juveniles.

Two years ago, the four-member liberal wing of the court - Justices
John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen
Breyer - criticized their colleagues for being unwilling to ban what
they called the "shameful practice" of executing juveniles.

Those four were outvoted in a major death penalty case in June, over
whether to throw out more than 100 death sentences that were handed
down by judges instead of juries. The court ruled earlier that juries,
not judges, are final arbiters of the death penalty, but it refused to
apply the decision to old cases.

The juvenile case will decide the fate of about 70 people on death row
who killed when they were teenagers, including a Missouri man who was
17 when he helped push a woman off a railroad bridge in 1993. The
United States is among only a few countries that allow execution for
crimes committed before age 18.

This year's top free speech case asks if the government can force cattle
producers to pay for programs such as the "Beef: It's What's for Dinner" ad
campaign. The court's ruling is significant because the government forces
growers of many agricultural products, from eggs to alligators, to share
expenses for marketing. The eventual ruling would affect nonagriculture
government programs, too.

The nine justices, with an average age of 70, have served together
without a retirement or death for more than 10 years, a modern record.
At least one retirement is considered likely at the end of the term.
Most mentioned prospects are Chief Justice William H. Rehnquist, 80,
the 74-year-old O'Connor and Stevens, 84.

Jesse Choper, a constitutional law professor at the University of
California-Berkeley, said that the court, under Rehnquist's
leadership, has been notable for taking on many tough issues.

"They certainly wade in where lots of others hesitate to tread," he
said.

An appeal not yet at the court, but likely this fall, involves
Oregon's assisted-suicide law. An appeals court has ruled that
Attorney General John Ashcroft cannot hold doctors criminally liable
for prescribing overdoses under the state's voter-approved law. The
White House has until November to appeal the decision.