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.

Speaking of the Davis case and its evidentiary failings, the justices will look in Perry v. New Hampshire at the reliability of eyewitness testimony. Depending upon the scope of the ruling, this case could turn out to be the most important of the term because eyewitness testimony is so prevalent in criminal cases all over the country. Has enough doubt been raised about the reliability and accuracy of eyewitness testimony to merit tougher evidentiary standards on its admissibility? How far will the justices be willing to go to change rules that affect tens of thousands of cases each year?

Speaking of evidence in criminal cases, the justices will resolve Williams v. Illinois, a case that has tizzified prosecutors all over the country. When the results of DNA testing are introduced in criminal cases, does the state have to bring to the witness stand the scientist who extracted the DNA and conducted the testing? Or may it rely instead upon another analyst, not present at the time of the testing, to tell jurors about the test's conclusions. The Supreme Court of Illinois ruled that the original scientist didn't have to come to court. The folks at the Innocence Network disagree. It's another case with extraordinarily broad implications depending upon how it is decided.

Speaking again of the Davis case, the Court will hear an argument in November on another criminal law case, Smith v. Cain, which also touches upon the issue of eyewitness identification in a murder case. You don't have to look hard in Smith to see the echoes of Davis. In Smith, Louisiana prosecutors reportedly failed to disclose to defense attorneys at trial that:

the key witness had made numerous conflicting statements to the police concerning his ability to identify any of the perpetrators. Their newly disclosed materials included statements by other witnesses casting doubt on the key witness' testimony, a statement by an apparent perpetrator seemingly denying petitioner's involvement; a statement by a firearms examiner that contradicted his trial testimony implying that petitioner was one of the shooters; and a confession from another individual.

And what did the state trial court judge and the Louisiana Supreme Court do when confronted with this new evidence? Nothing. Even though Juan Smith was the only person ever tried for the crime, and even though the High Court in Brady v. Maryland requires prosecutors to share exculpatory evidence before trial, the state courts let Smith's conviction stand. Unlike Davis, Smith was not sentenced to death for his role in the crime. But if the justices want to do something about the systemic procedural failures which marked the Davis case, they will lend a hand to Smith.

Finally, another interesting Fourth Amendment case worth mentioning here is United States v. Jones in which the justices will consider whether police can put a GPS tracking device on a person's car without a warrant and without the target's knowledge or consent. The oral argument in Jones, scheduled for November 8, ought to be fascinating as the Luddite-like justices take up a case at the intersection of technology and the Fourth Amendment. I can just hear Justice Antonin Scalia's rib-tickling hypothetical now. And I can picture in my mind's eye the 6-3 vote in favor of the government and against Antoine Jones, whose drug conviction and life sentence were overturned by the lower federal appeals court.

We see in each of these cases the Court's perennial struggle to balance rights and responsibilities within the criminal justice system. One such early test comes today, when the justices during their conference take up the case of Duane Buck, the condemned Texas man whose execution they stayed two weeks ago. The justices now have to decide whether they will accept Buck's case for review, whether they will seek to hold Texas to its word a decade ago that Buck would get a new sentencing trial after his first one was tainted by unconstitutionally racial testimony.

The justices may have been eerily silent last Wednesday night when they turned down Troy Davis' last appeal. But, as the early docket indicates, they won't be able to stay quiet for long on the legal issues he raised, at home and around the world -- the ones that didn't die with him, that is.