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LAW CENTER PANELISTS:   

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Annual Supreme Court Institute Press Briefing:
"The Supreme Court’s October Term 2004 – What to Expect”
**There will also be a special press preview of the brand-new Supreme Court Mootcourt room **

Monday, September 27, 2004
9:00- 11:00a.m. (light breakfast served at 8:30am)

Georgetown University Law Center
Hotung International Law Building, Room 2000
550 First St., N.W. (use Tower Green entrance)
Washington, DC 20001

Vicki Jackson, Associate Dean and Professor of Law, Georgetown Law Center

Professor Julie O’Sullivan: Federal Sentencing Guidelines
Professor Peter Rubin: Juvenile Death Penalty
Professor Viet Dinh: Civil Rights
Dean T. Alexander Aleinikoff: Alien Detention and Deportation
Professor Michael Gottesman: Constitutional Limitations on Federal and State Regulation of Commerce

Professor O’Sullivan will discuss two of the most significant cases before the Court this term, United States v. Booker and United States v. Fanfan (consolidated), both relating to the constitutionality of federal sentencing guidelines. The Court has granted review and scheduled oral argument in both these cases on an expedited basis in response to an extraordinary request from the Solicitor General. The constitutionality of the federal sentencing guidelines was cast into doubt with the Court’s decision at the end of the last Term in Blakely v. Washington, prompting a rising chorus in lower federal courts for immediate Supreme Court clarification. In Blakely, the Court held that the State of Washington’s sentencing scheme was unconstitutional because it allowed a judge to enhance the sentence of a defendant based on an aggravating fact that was neither a prior conviction nor found beyond a reasonable doubt by the jury.

Professor Rubin will discuss Roper v. Simmons, a case before the Court concerning the constitutionality of the death penalty as applied to juveniles. The Court in 1989 upheld a death penalty with a minimum age of 16 in Stanford v. Kentucky, but the vitality of that ruling has been questioned in light of the Court’s subsequent 2002 decision in Atkins v. Virginia, in which the Court held that it would be unconstitutional to apply the death penalty to someone who is mentally retarded. In Roper, the Missouri Supreme Court relied on Atkins in ruling that it would constitute cruel and unusual punishment, in violation of the Eighth Amendment, to apply the death penalty to a defendant who was seventeen at the time of his offense. The case is also significant because of the ongoing dispute within the Court concerning the relevance of sources of foreign law. The foreign law issue has arisen in several cases in recent years, including in Atkins and the Texas sodomy case, Lawrence v. Texas, prompting an open debate amongst the justices concerning the legitimacy of the Court’s considering how other nations approach certain issues in deciding the scope of the U.S Constitution.

Professor Dinh will discuss several cases pending before the Court that raise a variety of civil rights issues. He will focus primarily on Johnson v. California, which concerns the constitutionality of a California law that provides for the possibility of racial segregation in prison cells for the first 90 days of incarceration by including race as one of the factors for determining cell placement. The policy only applies to the first 90 days and a prisoner’s first cell-mate. The rest of the prison is integrated. The question presented is whether this state policy constitutes a violation of the Equal Protection Clause. Professor Dinh will also be ready to discuss and answer questions about two other cases: Jackson v. Birmingham Board of Education, which raises the question of whether a cause of action under Title IX of the Education Amendments of 1972 extends to a former high school girls basketball coach who alleges that he was fired from his job after complaining that members of his team were the victims of gender discrimination; and Smith v. City of Jackson, Mississippi, which raises the question whether police officers can maintain a claim under the Age Discrimination in Employment Act by showing that the city’s merit pay scale, while not the result of intentional discrimination, has a disparate adverse impact on older officers.

Dean Aleinikoff will discuss three groups of cases concerning the detention and deportation of aliens. The Court has heard a series of cases concerning the constitutional and statutory rights of aliens in detention and deportation proceedings, including the series of cases involving alleged “enemy combatants” last Term. The issues before the Court this fall include whether the indefinite detention of aliens denied entry at national borders is constitutional (Crawford v. Martinez and Benitez v. Wallis, Dist. Dir, INS), whether the United States can deport someone to Somalia, which does not have a functioning government recognized by the United States (Jama v. INS), and whether a drunk driving conviction constitutes a “crime of violence,” subjecting a resident alien to deportation (Leocal v. Ashcroft).

Professor Gottesman will discuss three cases before the Court that raise a variety of issues concerning constitutional limits on federal and state governmental regulation of commerce. His primary case for discussion will be Ashcroft v. Raich, which reviews a Ninth Circuit decision preliminarily enjoining an application of the federal Controlled Substances Act on the ground that it exceeds congressional Commerce Clause authority. The Ninth Circuit agreed with the plaintiff that the federal law is unconstitutional to the extent that it prohibits him from possessing, obtaining, manufacturing, or providing cannabis for medical use, as permitted by California law. Professor Gottesman will also discuss Granholm, Governor of Michigan v. Heald, Michigan Beer & Wine Wholesalers v. Heald, and Swedenburg v. Kelly. These three cases raise the question of whether a state may, based on the 21st Amendment, treat in-state and out-of-state wineries differently under state tax law, without running afoul of the Dormant Commerce Clause’s prohibition on unreasonable state burdens on interstate commerce. Finally, Professor Gottesman will be ready to discuss and answer questions about both Veneman, Sec. of Agriculture v. Livestock Marketing and Nebraska Cattlemen, Inc. v. Livestock Marketing, which raise the question whether the mandatory assessments for generic beef advertising under the federal “Beef Act” are constitutional or instead amount to a violation of the cattle owners’ First Amendment rights.

BIOGRAPHICAL INFORMATION ON PANELISTS:

Professor O’Sullivan joined the law faculty in November 1994 from her position in the Office of Independent Counsel (Little Rock,Arkansas), where she worked on the Whitewater investigation. She served as an assistant U.S. attorney in the Criminal Division of the U.S. Attorney's Office of the Southern District of New York. In addition, Professor O'Sullivan served as a law clerk to Justice Sandra Day O'Connor of the Supreme Court. Professor O’Sullivan is one of the nation’s leading experts on federal white collar crime and an author of a leading casebook on that topic. She has also presented oral argument before the Supreme Court.

Before joining the Georgetown law faculty, Professor Rubin clerked for Justice David H. Souter of the Supreme Court and then spent several years as a practicing lawyer specializing in constitutional litigation. At Georgetown, Professor Rubin teaches and writes about constitutional law. In November and December of 2000, Professor Rubin served as counsel to Vice President Gore before the U.S. Supreme Court in the two Florida election cases, Bush v. Palm Beach County Canvassing Board and Bush v. Gore. He also founded the American Constitution Society in 2001, an organization that describes itself as seeking “to restore the fundamental principles of respect for human dignity, protection of individual rights and liberties, genuine equality, and access to justice to their rightful—and traditionally central—place in American law.”

After law school, Professor Dinh served as a law clerk to Supreme Court Justice Sandra Day O'Connor. He was Associate Special Counsel to the U.S. Senate Banking Committee for the Whitewater investigation and Special Counsel to U.S. Senator Pete V. Domenici for the impeachment trial of President Clinton. He also serves as counsel to the Special Master mediating a number of lawsuits by Holocaust victims against German and Austrian financial institutions. Most recently, Professor Dinh served as Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice.

Dean Aleinikoff joined the law faculty after having served as the Executive Associate Commissioner for Programs in the U.S. Department of Justices’ Immigration and Naturalization Service and as General Counsel in the Immigration and Naturalization Service. He was previously on the faculty at the University of Michigan Law School and served in the Office of Legal Counsel of the Justice Department. He has published numerous articles and books in the areas of immigration, race, statutory interpretation, and constitutional law, and is considered one of the nation’s leading authorities on the rights of aliens in the United States. His book, Semblances of Sovereignty: The Constitution, the State, and American Citizenship was published by the Harvard University Press.

Professor Gottesman was in private practice before joining the faculty as a full-time professor in 1989. Specializing in the fields of labor law, constitutional law, and civil rights, Professor Gottesman early on established a reputation as one of the very best Supreme Court and appellate advocates in the country. He has argued numerous cases before the Supreme Court, including many of the Court’s most high-profile cases. Professor Gottesman has continued to practice regularly before the Court since joining the Georgetown law faculty, where he is one of the law school’s most popular teachers.