Supreme Court Preview: The Roberts Legacy Term?


The coming term will be one of the most challenging in decades -- and it may define the chief justice's career



This is the first of a three-part series this week previewing the upcoming October term of the United States Supreme Court. Part II will look at what the justices did and said over their summer vacations. Part III will preview additional cases.

Part I: This Term or the Next?

After a long summer break during which they traveled the world, spoke proudly at length on matters large and small, and narrowly avoided disaster, the nine justices of the United States Supreme Court are officially back at their posts, one week before the heralded first Monday in October. They meet today in person at the court for their first conference of the new season, called the Long Conference, at which they'll add significantly to the number of cases and controversies (41) currently on their docket for the 2011-2012 term.

And what a term it could be! Before it's through, nine rambunctious months from now, the justices may have decided the constitutionality of the Patient Protection and Affordable Care Act. They may have begun to sift through the dust of S.B. 1070, Arizona's brazen anti-immigration law. By the term's end, they may be forced to confront the legality of same-sex marriage in California in the Proposition 8 case, perhaps even tackle the federal Defense of Marriage Act, and renew their tango with affirmative action standards.

If the justices accept for review even just a few of these monumental cases, the coming term will be one of the most challenging in decades -- and certainly the most revealing one yet of John Roberts's six-year tenure as Chief Justice of the United States. Roberts has consistently crowed about the current Court's collegiality, but whatever robed rosiness exists surely will be tested if these politicized cases make it onto the docket. If they do, no matter how the Court rules the term could define Roberts's legacy. We'll no longer need Jeffrey Toobin to tell us what kind of an "umpire" he really is.

Or, never mind; the coming term could be just a tantalizing precursor to next fall's docket. The federal health care law almost certainly will come to the High Court. And when it does, it will tower over the other cases. But the fight over the Arizona immigration measure is still bogged down out west. And the battle over the Golden State's anti-same-sex marriage initiative, Proposition 8, is still detoured at the California Supreme Court, which has yet to give final guidance to the 9th U.S. Circuit Court of Appeals about a jurisdictional issue. Each of those courts would have to move extraordinarily fast now to get those cases to Washington this term.

So instead of focusing upon the cases that are not yet on the Court's docket, instead of dreaming up questions for oral arguments that may not occur until next fall, let's focus upon the cases which are before the justices. If you are looking for an early theme, a review of the menu when it's only half-written, perhaps the clearest so far is the Court's focus on cases touching upon criminal law and due process. It's as if the ghost of Troy Davis, the Georgia man dubiously executed last week amid international controversy, hovers over these cases as the justices and their clerks prepare for the oral arguments ahead.

First, there is the lawyers, guns, and money sub-docket. In Lafler v. Cooper, the Court will determine what remedy is appropriate for a defendant who was given bad advice from his lawyer not to take a plea deal. In Martinez v. Ryan, the justices will look at another ineffective assistance of counsel case. And in Martel v. Clair, the Court takes on the case of a California man whose trial court judge refused to investigate his request to change attorneys. "Ineffective assistance of counsel" cases, you should know, are a terrible problem within the criminal justice system -- one that is getting worse with budget cutbacks to state public defender programs.  

Those cases nibble on the edges of the federal law that limits the ability of convicted state prisoners to seek relief in federal court. In Greene v. Fisher, the Court will tackle the matter head on, pondering the temporal breadth of the Antiterrorism and Effective Death Penalty Act of 1996. Last year, citing that law, a federal trial judge in Georgia denied Troy Davis' request to have his conviction overturned on evidence discovered after trial. Is the Court concerned about the height of such procedural obstacles? These cases may help give us the answer -- and right now they represent nearly 10 percent of the existing docket. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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