Even though the Supreme Court so far has granted certiorari in only 28 new cases, there is no shortage of important issues awaiting the opening of the new October term. For one thing, a long and robust conversation between the three branches of government may have set the stage for the Court to finally determine what rights are actually possessed by the suspected terrorists and enemy combatants now held at the U.S. Navy base in Guantanamo Bay, Cuba.

What could be one of the new Term’s biggest cases has been a long time coming. In 2004, the Supreme Court rebuffed the Bush Administration and held in Rasul v. Bush that the prisoners being detained as enemy combatants at Guantanamo are covered by the federal habeas corpus statute and thus have the right to contest the legality of their incarcerations in federal court. Subsequently, however, Congress passed the Detainee Treatment Act of 2005 (DTA), which appeared to strip the Guantanamo detainees of such habeas rights.

In 2006 the Court responded in Hamdan v. Rumsfeld byholding that the DTA actually did not strip federal courts of jurisdiction over any of the many habeas cases that were already pending at the time of the DTA’s enactment. Seeing that the ball was back in its court, Congress then passed the Military Commissions Act of 2006, which denies detainees any habeas corpus rights whatsoever, regardless of whether their cases are already pending. (Instead, the MCA says, detainees are entitled to special military trials.)

Last winter the U.S. Court of Appeals for the District of Columbia Circuit upheld these habeas-stripping provisions and in April 2007 the Supreme Court denied the detainees’ petitions for certiorari.

Two months later, however, the Supreme Court surprised nearly everyone by changing its mind. On June 29 it granted the detainees’ petitions for certiorari so as to decide once and for all whether federal courts have jurisdiction over petitions for writs of habeas corpus that are (1) filed by aliens who were (2) captured abroad and then (3) detained at Guantanamo Bay, Cuba. The Court consolidated two separate cases for argument on these issues: Boumediene v. Bush, No. 06-1195 (involving seven detainees) and Al Odah v. United States, No. 06-1196 (involving 56 detainees). These consolidated cases were not immediately scheduled for argument but are likely to be heard in either November or December.

When they are, and assuming the Court agrees with the government that Congress intended to deprive the courts of jurisdiction over the detainees’ habeas petitions, the cases will be decided on the basis of whether or not the MCA violates the Constitution’s Suspension Clause, which states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2.

Meanwhile, when the 2007-08 term officially begins October 1, the first case before the Court will be Washington State Grange v. Washington State Republican Party, No. 06-713, which questions the constitutionality of state laws that regulate the party identification candidates can include on primary election ballots, and New York City Board of Education v. Tom F., 06-637, a case that asks the Court to identify the circumstances in which parents are entitled to tuition reimbursement for their disabled child's education.

Judging by the October argument calendar as a whole, sentencing issues in general and the Federal Sentencing Guidelines in particular also will remain a fertile ground for the Court this term. One case, Kimbrough v. United States, Docket No. 06-6330, is of particular interest as it addresses the oft-noted disparity between the heavier sentences imposed for crimes involving crack cocaine as opposed to those involving powder cocaine. In Kimbrough, the Court will review the actions of a federal judge who imposed a below-guidelines sentence in a crack-cocaine possession case on the grounds that the sentence required under the Guidelines was higher than necessary to do justice.

Also being watched closely is a case that the Court has not yet agreed to review -- District of Columbia v. Heller, No. 07-290. There the District of Columbia is seeking review of a court of appeals decision that struck down the District's gun control laws as an unconstitutional violation of the Second Amendment.