Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relists. True to form for the second conference in January, last week’s 18 new relists yielded 12 new cases and 11 hours of oral argument. (Texas’ two state-on-top appeals concerning its congressional and statehouse voting districts were consolidated.) An already blockbuster term became better still as the court added cases that […]

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Relist Watch

John Elwood reviews Tuesday’s relists.

True to form for the second conference in January, last week’s 18 new relists yielded 12 new cases and 11 hours of oral argument. (Texas’ two state-on-top appeals concerning its congressional and statehouse voting districts were consolidated.) An already blockbuster term became better still as the court added cases that should resolve such important issues as whether Securities and Exchange Commission administrative law judges are “officers of the United States” within the meaning of the appointments clause of the Constitution; whether states can collect sales and use taxes on internet and direct-mail sales from out-of-state buyers; whether a court should defer to a foreign government’s characterization of its own country’s law; and what may be the single most contentious and divisive issue the Supreme Court has faced in a quarter century — whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act. Happily, it seems likely that last case will be argued in April, so the legions of citizens who will camp out in line for a week or more to attend argument at least will not be subject to subzero temperatures.

The court is back with more great relists this week – although, because we have passed the court’s traditional cutoff point for granting cases to be argued during the current term, the next grants likely will be argued in October. Indeed, some – and by “some,” I mean “me” – have speculated that the court may have rescheduled these cases precisely so they will be argued next term. Just days before the January 5 conference, the court rescheduled every one of this week’s newly relisted cases so that they’d be considered for the first time at the January 12 conference. That means that they’d be on their first relist at the third January conference – normally the conference at which the court starts filling its October calendar. The fact that all four of this week’s new relists were rescheduled before relisting suggests that the court won’t try to fit these cases on the April calendar, which would require either a short period for filing the reply briefs (two weeks, instead of the usual 30 days), or expedited briefing (which the Roberts court rarely orders). Perhaps the court will use the final April argument spots for as-yet-ungranted cases on a faster track – say, the travel ban or Deferred Action for Childhood Arrivals cases.

You can see why the court is pushing off this week’s new relists: The cases involve sufficiently momentous issues that if the justices decide to take them, they won’t want to knock the opinions out between the late April sitting and the end of June. Exhibit A is Garco Construction, Inc. v. Secretary of the Army, 17-225, which presents the question whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled. Those cases stand for the proposition that courts must defer to an agency’s interpretation of its own ambiguous regulation unless that interpretation is plainly erroneous or inconsistent with the regulation. Despite the fact that he wrote Auer, Justice Antonin Scalia began calling for the court to reconsider “Auer deference” in October Term 2010. By now, several justices have called for it to be reconsidered, though they have stopped short of driving pencils through its heart. For a host of reasons (chief among them that the rule encourages agencies to write ambiguous regulations), Auer is perhaps the most hated opinion of anti-administrativists everywhere.

Next up is a case that has been the subject of some commentary. For those who are only just now emerging from a long coma, Hargan v. Garza, 17-654, involves an unaccompanied teenager (known as “Jane Doe” to protect her privacy) who was caught trying to enter the United States illegally. When she later discovered she was pregnant, she wanted to have an abortion. Seeking to avoid facilitating abortions, the federal government refused to allow her to leave its custody. The full U.S. Court of Appeals for the District of Columbia Circuit ordered the government to permit her to leave. Doe had the abortion on October 25, 2017, instead of October 26, as originally planned. The abortion mooted the legal dispute about whether the government was legally required to release Doe for the abortion before it had sought review of the D.C. Circuit’s decision. The government’s petition seeks Munsingwear vacatur. To most Americans, “Munsingwear vacatur” obviously means getting pantsed while wearing tighty-whities. But it has a very different meaning in the legal context. As the author of the controlling D.C. Circuit decision in this case previously explained on SCOTUSblog, United States v. Munsingwear, Inc. involves “what to do with a court of appeals decision when the case becomes moot while it is pending on review by a higher court. … In Munsingwear, the Supreme Court held that, where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated.” The idea is that the party seeking review shouldn’t be stuck with a decision it was trying to overturn when it lost that opportunity through no fault of its own. In addition to seeking vacatur, the government suggested that the justices “may wish to issue an order to show cause why disciplinary action should not be taken against” Doe’s attorneys for “what appear to be material misrepresentations and omissions to the government designed to thwart this Court’s review” regarding the date of the abortion. Because we at Relist Watch strive at all times to be anodyne, let me just say that much has been written on this case, and I’m not going improve on that here.

The next case is nowhere as gripping as Munsingwear. Section 1 of the Federal Arbitration Act provides that the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Dominic Oliveira is an independent contractor whose agreement with interstate trucking company New Prime includes a mandatory arbitration provision requiring Oliveira to arbitrate all work disputes with New Prime on an individual basis, and mandates that all disputes regarding arbitrability be decided by an arbitrator. Oliveira filed a putative class action in court and opposed arbitration on the basis of the Section 1 exemption. So that poses the question of who decides whether the FAA applies – a court or an arbitrator? The U.S. Court of Appeals for the 1st Circuit held that the applicability of the FAA is a threshold question for a court to determine before compelling arbitration under the act. In New Prime Inc. v. Oliveira, 17-340, New Prime seeks review of that decision, arguing that, under the contract, the arbitrator should decide whether the FAA applies, and that the FAA’s Section 1 exemption is limited to “contracts of employment” and doesn’t apply to independent-contractor agreements.

If you think this post has gone on forever, you haven’t seen anything. CNH Industrial N.V. v. Reese, 17-515, involves a lawsuit filed in 2004. The case concerns whether the healthcare benefits of CNH retirees have vested under the governing collective bargaining agreement. CNH argues that on the case’s *third* trip to the U.S. Court of Appeals for the 6th Circuit, that court effectively revived a circuit-precedent presumption that benefits have vested that the Supreme Court abrogated in M & G Polymers USA, LLC v. Tackett. Court-watchers will note that Judge Jeffrey Sutton dissented from the ruling below. Sutton is tied for third place among current court of appeals judges for the most cert grants in cases in which he dissented (five). He is also tied for second place among that group for having decisions from which he dissented overturned by the Supreme Court (also five; he has a perfect record so far).

We’ll be back again next week and then, blessedly, we all get a month off. Until next time!

Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relists

Garco Construction, Inc. v. Secretary of the Army, 17-225

Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.

(relisted after the January 12 conference)

 

New Prime Inc. v. Oliveira, 17-340

Issues: (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

(relisted after the January 12 conference)

 

CNH Industrial N.V. v. Reese, 17-515

Issue: Whether the U.S. Court of Appeals for the 6th Circuit misinterpreted the Supreme Court’s decision in M & G Polymers USA, LLC v. Tackett, thus creating a conflict with the decisions of other circuits and within the U.S. Court of Appeals for the 6th Circuit itself, by employing rules of contract interpretation explicitly repudiated in Tackett to deem a general duration clause in the collective bargaining agreement ambiguous, and then using extrinsic evidence to hold the healthcare benefits of the retiree class vested for life.

(relisted after the January 12 conference)

 

Hargan v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12 conference)

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5 and January 12 conferences)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21, December 1, December 8, January 5 and January 12 conferences)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1, December 8, January 5 and January 12 conferences)

 

Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71

Issues: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

(relisted after the January 5 and January 12 conferences) 

 

Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74

Issues: (1) Whether the Endangered Species Act authorizes the federal government to designate as critical habitat private land that is unsuitable as habitat and has no connection with a protected species; and (2) if the act authorizes such a designation, whether it would be consistent with the United States Constitution.

(relisted after the January 5 and January 12 conferences)

 

Kisela v. Hughes, 17-467

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

(relisted after the January 5 and January 12 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. Here it is the second week of 2018, and I’m still writing “Infrastructure Week” on my checks. The justices’ New Year’s resolution evidently involved granting more cases, because after a fall that was fairly light on relists, we now have too many riches: 18 first-time relists, plus three returning veterans. […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

Here it is the second week of 2018, and I’m still writing “Infrastructure Week” on my checks. The justices’ New Year’s resolution evidently involved granting more cases, because after a fall that was fairly light on relists, we now have too many riches: 18 first-time relists, plus three returning veterans. That’s not quite as amazing as it sounds, because eight of those fall into three groups of related cases. The second conference in January is traditionally heavy on relists — last year’s had 27, yielding 16 grants and 13-ish hours of argument. If that pace of grants seems a little lumpy to you, there are reasons for that. First, there is almost a month between conferences from mid-December until early January, so a lot of petitions build up. Second, the second January conference is the traditional cutoff for granting cases that can still be argued that term without expedited briefing. And, relatedly, the solicitor general times the filing of court-invited amicus briefs for the January cutoff, so that category of cases that is statistically likely to yield grants (and thus relists) is over-represented at this conference. (The second, and usually bigger, swell of solicitor general amicus briefs arrives in time for the June cutoff for grant decisions to be made before the court recesses for the summer.)

There are so many juicy cases, it’s hard to know where to begin. Because it’s my party, I’ll begin with Lucia v. Securities and Exchange Commission, 17-130, and Securities and Exchange Commission v. Bandimere, 14-475. Both cases raise the question whether administrative law judges of the Securities and Exchange Commission are “officers of the United States” within the meaning of the appointments clause of the Constitution, meaning that they have to be appointed by the commission as a whole. Because current practice is for ALJs to be appointed by SEC staff rather than by the commission, a holding that they are officers would invalidate actions they had taken in the past. This is an issue so important that “Shark Tank”’s Mark Cuban — potentially the next president of the United States if Oprah doesn’t win that office by voice vote — filed an amicus brief supporting the challengers. The solicitor general filed a brief reversing the government’s traditional position that ALJs are employees and instead took the position that ALJs are “officers.” What’s more, the solicitor general recommended that the Supreme Court take Lucia, because the government’s own petition in Bandimere came from the United States Court of Appeals for the 10th Circuit, and the government fretted that Justice Neil Gorsuch might recuse himself because the government’s rehearing petition in that case came through his chambers, raising the risk of a 4-4 tie vote. As if that weren’t enough drama, the day after the solicitor general’s office filed its Lucia brief acquiescing in review, the SEC formally ratified the decisions of the ALJs in question, so there is no question that the actions in these cases were made by a validly appointed “officer.” Since then, people who are actually smart have debated whether the issue remains live and certworthy or not, and even deployed my favorite Supreme Court put-down, the word “baffling.” I’m just glad that we should have an answer soon, so I can stop being baffled. At least about the appointments clause.

Next up are Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71, and Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74, which involve the Environmental Protection Agency’s efforts to preserve the improbably named “dusky gopher frog,” which now makes its home in a single Mississippi county. The regulated parties characterize the issue as involving whether the government can designate for Endangered Species Act protection land that is “neither habitat” for that species “nor essential to species conservation.” The case drew noteworthy dissents from a panel of the U.S. Court of Appeals for the 5th Circuit and from denial of rehearing en banc by a close vote. As an aside, the petitioners in these cases had to file an environmental impact statement because of rampant deforestation caused by the filing of 13 amicus briefs supporting them.

In an age when members of the public can no longer bestir themselves to leave their vaguely couch-shaped objects to purchase needful items in person, South Dakota v. Wayfair, Inc., 17-494, may regrettably represent the future. The case invites the Supreme Court to revisit precedent that generally bars states from collecting sales and use taxes on internet and direct-mail sales from out-of-state buyers. Justice Anthony Kennedy called for reconsideration of that precedent, and we will soon learn whether the court will take up that invitation. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

The rest of the cases are equally consequential, but we don’t have the space to do extended-dance-remix writeups for each of them. So in condensed format: The identically captioned Abbott v. Perez, 17-586, and Abbott v. Perez, 17-626, and companions Texas Democratic Party v. Abbott, 17-680, and Morris v. Texas, 17-780, involve appeals from a three-judge district court decision rejecting some challenges to Texas’ congressional and statehouse voting districts, but accepting others. Texas seeks review of holdings that certain redistricting decisions were invalid; the challengers raise nowfamiliar claims that partisan gerrymandering is justiciable. Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 16-1220, principally involves whether a court should defer to a foreign government’s characterization of foreign law. WesternGeco LLC v. ION Geophysical Corporation, 16-1011, involves the availability of lost-profits damages in patent infringement cases for combinations occurring outside of the United States. Washington v. United States, 17-269, involves whether road culverts that reduce fish habitat in Washington state violate Native American fishing rights guaranteed by treaty. And Wisconsin Central Ltd. v. United States, 17-530, involves the question whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1). The government has conceded that the court should take that case, so you’d better get used to hearing about it.

As hard as it is to believe, after all that blather, there are five more relists I haven’t even covered yet. But we’re going to have to leave those for Relist Watch SelectTM below, because I have to leave now to appear on a new talk show on the Gorilla Network. Be sure to tune in next week, when we’ll be back with yet more blockbuster material.

Thanks to Kevin Brooks for compiling the cases in this post.

 

New Relists

WesternGeco LLC v. ION Geophysical Corporation, 16-1011

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). CVSG: 12/06/2017.

(relisted after the January 5 conference)

 

Lamar, Archer & Cofrin, LLP v. Appling, 16-1215

Issue: Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. CVSG: 11/09/2017.

(relisted after the January 5 conference)

 

Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., 16-1220

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit, in conflict with the decisions of three courts of appeals, erred in exercising jurisdiction under 28 U.S.C. § 1291 over a pretrial order denying a motion to dismiss following a full trial on the merits; (2) whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the U.S. Courts of Appeals for the 5th, 6th, 7th, 11th and District of Columbia Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the U.S. Court of Appeals for the 9th Circuit); and (3) whether a court may abstain from exercising jurisdiction on a case-by-case basis, as a matter of discretionary international comity, over an otherwise valid Sherman Antitrust Act claim involving purely domestic injury. CVSG: 11/14/2017.

(relisted after the January 5 conference)

 

Lagos v. United States, 16-1519

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.

(relisted after the January 5 conference)

 

Weyerhaeuser Company v. United States Fish and Wildlife Service, 17-71

Issues: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

(relisted after the January 5 conference)

 

Markle Interests, LLC. v. United States Fish and Wildlife Service, 17-74

Issues: (1) Whether the Endangered Species Act authorizes the federal government to designate as critical habitat private land that is unsuitable as habitat and has no connection with a protected species; and (2) if the act authorizes such a designation, whether it would be consistent with the United States Constitution.

(relisted after the January 5 conference)

 

Lucia v. Securities and Exchange Commission, 17-130

Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

(relisted after the January 5 conference)

 

Washington v. United States, 17-269

Issues: (1) Whether the treaty “right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes”; (2) whether the district court erred in dismissing the state’s equitable defenses against the federal government when the federal government signed these treaties in the 1850’s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and the plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

(relisted after the January 5 conference)

 

Pereira v. Sessions, 17-459

Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

(relisted after the January 5 conference)

 

Kisela v. Hughes, 17-467

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

(relisted after the January 5 conference)

 

Securities and Exchange Commission v. Bandimere, 14-475

Issue: Whether administrative law judges of the Securities and Exchange Commission, who act as hearing officers in administrative proceedings, are inferior officers under the appointments clause.

(relisted after the January 5 conference)

 

South Dakota v. Wayfair, Inc., 17-494

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether the Supreme Court should abrogate Quill Corp. v. North Dakota‘s sales-tax-only, physical-presence requirement.

(relisted after the January 5 conference)

 

Wisconsin Central Ltd. v. United States, 17-530

Issue: Whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1).

(relisted after the January 5 conference)

 

Abbott v. Perez, 17-586

Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; (4) whether the legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.

(relisted after the January 5 conference)

 

Abbott v. Perez, 17-626

Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw Texas House of Representatives districts unless the governor called a special legislative session to redraw the Texas House map within three business days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted Texas House of Representatives districts originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether any of the invalidated districts that were unchanged from the 2012 court-imposed remedial plan to the 2013 legislatively adopted plan (in Bell, Dallas and Nueces Counties) are unlawful, when the district court in 2012 issued an opinion explaining why these districts were lawful; (4) whether the Texas legislature had a strong basis in evidence to believe that consideration of race to maintain a Hispanic voter-registration majority was necessary in HD90 in Tarrant County, when one of the plaintiffs in the lawsuit told the legislature it had to keep the district’s population above 50 percent Spanish-surnamed voter registration to avoid diluting Hispanic voting strength.

(relisted after the January 5 conference)

 

Texas Democratic Party v. Abbott, 17-680

Issues: (1) Whether partisan gerrymandering claims are justiciable; and (2) whether the district court erred by dismissing appellants’ partisan gerrymandering claims without discovery and an evidentiary record.

(relisted after the January 5 conference)

 

Morris v. Texas, 17-780

Issues: (1) Whether voting districts, to the degree that they are not drawn to conform to court-recognized criteria, burden the First and 14th Amendment political rights of parties and their adherents; (2) whether there is a frequent-election objective in Article 1, Section 2, of the United States Constitution that requires a redistricting to allow as many voters in a district as possible who have voted in a previous election in the district to use their First Amendment-based accumulated knowledge of an incumbent or candidates to vote in a subsequent election; and (3) whether court-recognized redistricting criteria and a frequent-election objective together present a reliable means by which to measure the representational rights of political parties and their adherents.

(relisted after the January 5 conference)

 

Chavez-Meza v. United States, 17-5639

Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a pre-printed form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

(relisted after the January 5 conference)

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8 and January 5 conferences)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21, December 1, December 8 and January 5 conferences)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1, December 8 and January 5 conferences)

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How the Grinch stole relists

How the Grinch stole relistsJohn Elwood reviews Monday’s relists, after a fashion. Every Nerd Down in Nerd-ville Liked relists a lot … But the Grinch, Who lived just south of Nerd-ville, Did NOT! The Grinch hated relists! The whole relist thingy! Now, please don’t ask why. Who can tell with that ninny? It could be his head wasn’t screwed […]

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How the Grinch stole relists

John Elwood reviews Monday’s relists, after a fashion.

Every Nerd

Down in Nerd-ville

Liked relists a lot …

But the Grinch,

Who lived just south of Nerd-ville,

Did NOT!

The Grinch hated relists! The whole relist thingy!

Now, please don’t ask why. Who can tell with that ninny?

It could be his head wasn’t screwed on just right.

It could be, perhaps, his work schedule’s too tight.

But I think what may have most rankled the rube,

Was he was sick of the search for sight gags on YouTube.

 

But,

Whatever the reason,

Billable hours or camcorders,

He hunched at his desk, just dreading the orders,

Staring down at his screen with a sour, Grinchy scowl.

He knew it’d be hours ‘fore he could throw in the towel

Because learning QPs is a trouble-filled tale

When counsel of record don’t respond to email.

 

Right then the Grinch thought, “I must stop this whole thing!

“Why, for seven long years I’ve put up with it now!

“I MUST stop these relists from coming!

… But HOW?

Then he got an idea!

An awful idea!

THE GRINCH GOT A WONDERFUL, AWFUL IDEA!

 

“I need vehicle problems …”

The Grinch looked around.

But for lots of the cases, there were none to be found.

Did that stop the old Grinch?

No! The Grinch simply said,

“If I can’t find such problems, I’ll make them instead.”

“I know just what to do!” the Grinch uttered, awed.

And then he dispatched a quick text to Geek Squad.

He chuckled, and clucked, “More great Grinchy turns!”

“I’ll hack PACER and introduce vehicle concerns!”

So he called the Geek, Max. And explained, to his terror,

“You must inject, on each docket, a confession of error.”

“No court would do anything quite so headstrong,

“As grant relief to a party that’s admitted it’s wrong.”

 

Then he slithered and slunk, with a smile disagreeable,

And returned, with a smirk, to go home in his vehicle.

“This week, and forever, there’ll be no counsel to call,

“Cause with luck, there’ll be no relists, from now on, AT ALL.”

And when next Monday came, the Nerds were not blissed

‘Cause the orders contained not a single relist.

*  *  *  *  *

Now you know that our SCOTUSblog posts are on fleek,

And it’s true: There ARE no new relists this week.

We wish to assure our readers most fearful,

Who grouse ‘cause the ending’s supposed to be cheerful

That there’s no dark conspiracy, at least not ‘bout this,

It’s just that the court’s used up all its relists.

Come next year, we’ll be sure to have relists galore.

And we’ll be able to hunt for cat videos once more.

And so let me say, ‘fore I send to the printer,

“Happy Festivus to all, and to all a good winter!”

 

And with that, we’ll get down to the mundane matter of actually listing this week’s relists. The court has not formally relisted these cases on the dockets; we’re inferring from inaction that certain cases are relisted and that certain others (not listed below) are being held for cases that are already on the merits docket.

Thanks for reading this year and we look forward to making 2018 the best year yet for saying, “Relist Watch used to be better!”

Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relists

I feel so slighted that you didn’t read the great literary work above. There aren’t any!

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21 and December 1 conferences; likely relisted after the December 8 conference)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1 conference; likely relisted after the December 8 conference)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. For a Supreme Court (and litigants) that remains a smidge light on grants, Zarathust No Diso is coming early this year: There are more relists on for this Friday’s conference than for all conferences since mid-October combined — nine of ‘em, versus a total of seven for the five conferences […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

For a Supreme Court (and litigants) that remains a smidge light on grants, Zarathust No Diso is coming early this year: There are more relists on for this Friday’s conference than for all conferences since mid-October combined — nine of ‘em, versus a total of seven for the five conferences since October 23. To be fair, four of those involve a single issue, but this well-timed torrent of relists (and potential grants) is still a welcome development for those hoping to get more cases decided this term. As we approach the “cutoff date” in early to mid-January marking the point by which cases must be granted to be argued this term, we can expect the load of relists to remain heavy.

The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment. The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances – such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 – and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated. The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment. Hmmm. This may not be the best time to raise a claim tied to contemporary standards of decency.

There’s plenty for nerds to love about the remaining eight cases. Benisek v. Lamone, 17-333, combines two of the best themes of October Term 2017: namely, political gerrymandering and First Amendment retaliation. Will Benisek become a legal Sharknado by combining two killer themes in one case, or will it wind up as a “hold” for Gill v. Whitford? Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.” Upper Skagit Indian Tribe v. Lundgren, 17-387, involves whether an “in rem” action against real property owned by an Indian tribe implicates tribal sovereign immunity, and hopefully will also answer the question, “What happened to the Lower Skagit Tribe?” China Agritech, Inc. v. Resh, 17-432, follows up on American Pipe and Construction Co. v. Utah, which held that the timely filing of a defective class action tolled the limitations period as to “the individual claims of purported class members.” China Agritech asks whether two timely filed defective class actions tolled the limitations period for an untimely third class action of “absent” class members.

That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e). The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Several courts of appeals have adopted that view. These four petitions seek to challenge that conclusion.

That is mostly it for the great year that was 2017. We should be back next week for the Zarathustra boosters with our best guesses about the first relists of 2018. Thanks to Kevin Brooks for compiling the cases in this post.

========================================================

New Relists

Kasowski v. United States, 16-9649

Issue:  Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.

(relisted after the December 1 conference)

 

Richter v. United States, 16-9695

Issue: Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.

(relisted after the December 1 conference)

 

C.D., E.F., and G.H. v. United States, 16-9672

Issues: (1) Whether the sentence-modification limits in 18 U.S.C. § 3582 are jurisdictional; and (2) whether a substantial-assistance departure from a statutory mandatory minimum sentence that is higher than the defendant’s guideline range categorically renders that defendant ineligible for a 18 U.S.C. § 3582(c)(2) sentence reduction.

(relisted after the December 1 conference)

 

Lindsey v. Virginia, 17-132

Issue: Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] … unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing “believable evidence” to show that he lacked the requisite intent.

(relisted after the December 1 conference)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1 conference)

 

Benisek v. Lamone, 17-333

Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014 or 2016.

(relisted after the December 1 conference)

 

Upper Skagit Indian Tribe v. Lundgren, 17-387

Issue: Whether a court’s exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.

(relisted after the December 1 conference)

 

China Agritech, Inc. v. Resh, 17-432

Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

(relisted after the December 1 conference)

 

Koons v. United States, 17-5716

Issues: (1) Whether the U.S. Court of Appeals for the 8th Circuit erred in holding, contrary to the opinion of the U.S. Court of Appeals for the 4th Circuit, that defendants whose initial advisory guideline sentencing range was below a statutory mandatory minimum and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e) are not eligible for further reduction in sentence under 18 U.S.C. § 3582(c)(2) and retroactive sentencing guideline Amendment 782, which lowered the base offense levels assigned to most drug quantities; and (2) whether Freeman v. United States supports the holding that there is a substantive limitation on the term “based on” in 18 U.S.C. § 3582(c)(2) that prohibits defendants whose initial advisory guideline range was below a statutory mandatory minimum, and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e), from being eligible for further reductions in sentence due to retroactive sentencing guideline Amendment 782.

(relisted after the December 1 conference)

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21 and December 1 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. Just two new relists this week. If you were trying to come up with a case caption that could make complete strangers blanch in horror and dread, this week’s first relist would be hard to beat: It takes a special person not to wince when confronted with a name like […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

Just two new relists this week. If you were trying to come up with a case caption that could make complete strangers blanch in horror and dread, this week’s first relist would be hard to beat: It takes a special person not to wince when confronted with a name like Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., 17-368. If it were possible to combine ERISA, CERCLA, FIFRA, RCRA, and, well, a couple of made up acronyms in one place, it would probably be in a case with a name like that. But if we have learned anything as a people, it’s that you can’t judge a book by looking at the cover. And as it happens, the case whose caption we are unwilling to repeat further is way more interesting than the name lets on. To be sure, it’s nowhere near as interesting as, say, a member of another country’s royal family becoming engaged or an independent agency having a succession kerfuffle. But it’s not bad for a weeknight.

SRPAIPD is an Arizona-state entity that delivers water to a smallish area of central Arizona and supports its operations by selling electricity to roughly a million Phoenix residents. A solar-panel company brought antitrust claims against SRPAIPD challenging its new rate structure; the entity that desperately needs to be formerly known as Prince sought immunity as a state entity. The district court denied immunity and the U.S. Court of Appeals for the 9th Circuit dismissed the appeal for lack of jurisdiction on the grounds that the action was interlocutory. The Agricultural Improvement and Power District now seeks to revisit that determination.

I normally try to highlight the in forma pauperis relists because IFP petitions don’t get much attention on the web, both because they’re generally unlikely grants and because the briefs are hard to obtain. But I’m giving this case second billing anyway because Monday’s IFP relist will not be granted — at least not on the question presented by the petition.

Most lawyers without Ivy-League degrees know that the double jeopardy clause prohibits the government from retrying a defendant for the same defense following an acquittal. In Richardson v. United States, the Supreme Court held that retrial is permitted if the jury was unable to reach a verdict, so a case ends in mistrial. Serrano v. United States, 17-5165, involves the question of “what happens when a jury returns a guilty verdict, and the trial court finds the evidence sufficient, but grants a new trial on other grounds” — namely, an error in the jury instructions. Both lower courts resolved that issue against Serrano. But a funny thing happened on the way to the Supreme Court: While Serrano’s cert petition was pending, he was retried and acquitted of the charges against him (which involved a felon being in possession of ammunition). Now both the government and Serrano agree that his case is moot. If you’ve been paying attention at all this year, you should be getting that sinking feeling that Tony Soprano gets when he looks up and sees a hit man come into a restaurant where he’s eating, or that subway riders get when the doors close after a mariachi band has just stepped in to their car. When a case becomes moot on appeal, the Supreme Court must confront the (now seemingly ubiquitous) question of whether it should vacate the unfavorable decision in the courts below because the party seeking review was deprived of the opportunity to win reversal – a concept that will forever be linked to the Minnesota-based underwear company that emblazoned its name on the leading case. If you don’t already know that 2017 is the Year of Munsingwear, I don’t understand how you live your life. Serrano may prove to be an important case, but probably not because of double jeopardy.

And with that, I can get back to preparing for my fifteen minutes of obscurity. Thanks to Kevin Brooks for compiling the cases in this post.

========================================================

New Relists

Salt River Project Agricultural Improvement and Power District v. SolarCity Corp., 17-368

Issue: Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.

(relisted after the November 21 conference)

 

Serrano v. United States, 17-5165

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.

(relisted after the November 21 conference)

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9 and November 21 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3, November 9 and November 21 conferences)

 

Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(relisted after the October 27, November 3, November 9 and November 21 conferences)

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Status Quo Watch

Status Quo WatchJohn Elwood reviews Monday’s relists. Monday’s order list was a fitting one as the nation approaches the Thanksgiving holiday: It began with a flurry of excitement, followed by torpor. The excitement came, of course, from the fact that the court granted review in three relisted cases, all of them raising interesting First Amendment questions: four-time […]

The post Status Quo Watch appeared first on SCOTUSblog.

Status Quo Watch

John Elwood reviews Monday’s relists.

Monday’s order list was a fitting one as the nation approaches the Thanksgiving holiday: It began with a flurry of excitement, followed by torpor.

The excitement came, of course, from the fact that the court granted review in three relisted cases, all of them raising interesting First Amendment questions: four-time relist National Institute of Family and Life Advocates v. Becerra, 16-1140 (presenting a challenge to a California law requiring crisis-pregnancy centers to provide visitors with certain notices); four-time relist Minnesota Voters Alliance v. Mansky, 16-1435 (involving a challenge to a Minnesota law banning political apparel at polling places); and one-time relist Lozman v. City of Riviera Beach, Florida, 17-21 (concerning whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law). There was excitement of a different kind in three-time relist Reeves v. Alabama, 16-9282, as Justice Sonia Sotomayor (joined by Justices Ruth Bader Ginsburg and Elena Kagan) dissented from denial of cert in a case involving whether a prisoner can make an ineffective assistance of counsel claim when trial counsel does not testify about his or her strategic decisions. With two cases related to National Institute of Family and Life Advocates now being held (A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153), the relist rolls have been trimmed by six cases.

But now things are slowing down. We’ve handchecked the entire docket and there are no new relists going in to Thanksgiving week.  So good news, everybody – we can use this coming week to do just what we ought to be doing this time of year: come together with our families and face the soul-crushing emptiness of our lives.

But seriously: Happy Thanksgiving to (both of) our readers!  Safe travels!

I am thankful for the help of Kevin Brooks and Kent Piacenti in compiling the cases in this post.

========================================================

New Relists

What – you didn’t read the post?  There are no new relists.

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3 and November 9 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27, November 3 and November 9 conferences)

 

Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(relisted after the October 27, November 3 and November 9 conferences)

 

Upstate Citizens for Equality v. United States, 16-1320

Issues: (1) Whether Congress in the exercise of its Article I powers can infringe, reduce or diminish the territorial integrity of a state without its prior consent; (2) whether Congress possesses plenary power over Indian affairs and if so whether the Indian commerce clause authorizes the displacement of state rights to territorial integrity; (3) whether the land acquisition in this case via the mechanism of 25 U.S.C. § 465 (now 25 U.S.C. § 5108) represents a violation of the limits inherently expressed in the Indian commerce clause that limits Congress’ power to “regulate” “commerce”; and (4) whether the 300,000-acre ancient Oneida Indian reservation in New York still exists.

(relisted after the November 3 and November 9 conferences)

 

Town of Vernon, New York v. United States, 17-8

Issues: (1) Whether a tribe that opted out of the Indian Reorganization Act can have its status under the Act revived under the Indian Land Consolidation Act, 25 U.S.C. § 2202, even though the United States did not hold land in trust for that tribe at the time the tribe sought a land-in-trust acquisition; (2) whether the land-in-trust provision of the Indian Reorganization Act, 25 U.S.C. § 5108, exceeds Congress’ authority under the Indian commerce clause, Art. I, § 8, cl. 3; (3) whether § 5108’s standardless delegation of authority to acquire land “for Indians” is an unconstitutional delegation of legislative power; and (4) whether the federal government’s control over state land must be categorically exclusive for the enclave clause, Art. I, § 8, cl. 17, to prohibit the removal of that land from state jurisdiction.

(relisted after the November 3 and November 9 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. There have been no actual grants since October 16, but at least we’ve been accumulating relists. Oh sure, we had a couple of summary reversals this week – the first opinions of the term – from the ranks of the relists. But that’s not exactly what keeps people tuning in, […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

There have been no actual grants since October 16, but at least we’ve been accumulating relists. Oh sure, we had a couple of summary reversals this week – the first opinions of the term – from the ranks of the relists. But that’s not exactly what keeps people tuning in, is it? (Wait – why do people tune in?) Well, I have no idea what makes people read this, but rest assured we have plenty of whatever it is.

This week we have three –count ‘em – three new relists. As always, we begin with the most colorful one. Judging by his name, Fane Lozman was a character in a Japanese video game in the 1990s. But today, Lozman is an outspoken critic of the use of eminent domain for redevelopment efforts in the City of Riviera Beach, Florida. During one city council meeting, Lozman persisted in talking about local government corruption despite the efforts of the presiding councilmember to cut him off. The councilmember summoned a police officer and, when Lozman kept talking, ordered the officer to “carry him out.” Prosecutors later dismissed the resulting “disorderly conduct” and “resisting arrest without violence” charges on the ground that there was “no reasonable likelihood of successful prosecution.” Lozman then brought a claim that the city had violated his First Amendment rights by arresting him in retaliation for speaking out. In the district court, it was undisputed that (1) Lozman had been engaging in protected political speech at the time of the arrest and (2) an arrest would “chill a person of ordinary firmness”—the first two elements of the claim. The case went to trial on the remaining two necessary elements under the governing law of the U.S. Court of Appeals for the 11th Circuit: (3) whether the city acted because of a retaliatory motive, and (4) whether the officer had probable cause to arrest Lozman. The jury found for the city. In his petition, Lozman argues that there is a circuit split on whether the fourth element is really necessary – that is, “whether the presence of probable cause categorically defeats a retaliatory-arrest claim.”

If Lozman v. City of Riviera Beach, Florida, 17-21, sounds familiar to you, that’s because Mr. Lozman is making a return trip to the Supreme Court. The first case with that caption concerned the very different issue of whether Lozman’s floating house was a “vessel” for purposes of federal maritime jurisdiction. (The Supreme Court sided with Lozman in holding that it wasn’t.) The Supreme Court not infrequently takes cases from returning litigants. But if this case gets granted, I think Mr. Lozman will be the litigant who has brought the two most dissimilar legal claims to the court (though both cases are rooted in his legal wrangling against the city).

The next two new relists concern the Oneida tribe of upstate New York, one of the most powerful tribes in the country at the time of the American Revolution. In 1788, the tribe agreed to sell huge tracts of land to New York state and retain a (soon federally recognized) reservation of 300,000 acres, which dwindled to just 32 acres by 1920. Beginning in the 1990s, the tribe began to repurchase reservation land. The Oneidas then successfully petitioned the Secretary of the Interior to accept transfer of certain of their lands to be held in trust; in 2008, the secretary accepted the land to “help to address the [Oneida] Nation’s current and near term needs to permanently reestablish a sovereign homeland for its members and their families, preventing alienation of the lands.” The state of New York (which later settled), several local governments, and citizen groups filed suit, because the secretary’s decision reduced their ability to tax the property and exert regulatory control over it. Two petitions seek to challenge the secretary’s action on a number of bases, including that the statute the secretary invoked is unconstitutional, that the statute doesn’t apply to the Oneida tribe, and that the Oneida’s federally recognized reservation has been disestablished. The petitioners are one municipality (and associated officials), in Town of Vernon, New York v. United States, 17-8, and a citizen’s group, in Upstate Citizens for Equality v. United States, 16-1320. Co-counsel for the town of Vernon, John Bursch, tipped me off to the fact that when Chief Justice John Roberts was in private practice, he filed a petition that unsuccessfully sought review of the same non-delegation issue (involving an earlier codification of the same statute) raised by Town of Vernon. See Roberts v. United States, No. 99-1174.

We’ll be back next week with more baseless speculation and – as always – plenty of brother love.

Thanks to the unimaginatively named but diligent Kent Piacenti for compiling the cases in this post.

========================================================

New Relists

Upstate Citizens for Equality v. United States, 16-1320

Issues: (1) Whether Congress in the exercise of its Article I powers can infringe, reduce or diminish the territorial integrity of a state without its prior consent; (2) whether Congress possesses plenary power over Indian affairs and if so whether the Indian commerce clause authorizes the displacement of state rights to territorial integrity; (3) whether the land acquisition in this case via the mechanism of 25 U.S.C. § 465 (now 25 U.S.C. § 5108) represents a violation of the limits inherently expressed in the Indian commerce clause that limits Congress’ power to “regulate” “commerce”; and (4) whether the 300,000-acre ancient Oneida Indian reservation in New York still exists.

(relisted after the November 3 conference)

 

Town of Vernon, New York v. United States, 17-8

Issues: (1) Whether a tribe that opted out of the Indian Reorganization Act can have its status under the Act revived under the Indian Land Consolidation Act, 25 U.S.C. § 2202, even though the United States did not hold land in trust for that tribe at the time the tribe sought a land-in-trust acquisition; (2) whether the land-in-trust provision of the Indian Reorganization Act, 25 U.S.C. § 5108, exceeds Congress’ authority under the Indian commerce clause, Art. I, § 8, cl. 3; (3) whether § 5108’s standardless delegation of authority to acquire land “for Indians” is an unconstitutional delegation of legislative power; and (4) whether the federal government’s control over state land must be categorically exclusive for the enclave clause, Art. I, § 8, cl. 17, to prohibit the removal of that land from state jurisdiction.

(relisted after the November 3 conference)

 

Lozman v. City of Riviera Beach, Florida, 17-21

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

(relisted after the November 3 conference)

 

Returning Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27 and November 3 conferences)

 

Reeves v. Alabama, 16-9282

Whether, when trial counsel does not testify about his or her own strategic decisions as part of a claim under Strickland v. Washington, a defendant may establish ineffective assistance of counsel using other evidence, as most circuit and state courts hold; or whether the presumption of sound strategy is categorically irrebuttable in the absence of trial counsel’s testimony, as the Alabama Court of Criminal Appeals held here.

(relisted after the October 13, October 27 and November 3 conferences)

 

Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(Relisted after the October 27 and November 3 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. We can all agree that it’s a scary time of year. And from the looks of things, the horrors are just beginning. But at least my upcoming court dates will soon be in the past, and my strained efforts at humor will stop being so abbreviated. (Such bad food! And […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

We can all agree that it’s a scary time of year. And from the looks of things, the horrors are just beginning. But at least my upcoming court dates will soon be in the past, and my strained efforts at humor will stop being so abbreviated. (Such bad food! And such small portions!)

Our sole new relist this week is a capital case out of Alabama in which the condemned prisoner contends his trial was fundamentally unfair. Oh, sorry – we already did that story last week.

Wait, do you mean to tell me there’s another one? Floyd v. Alabama, 16-9304, concerns petitioner Christopher Floyd’s claims that the prosecution unlawfully excluded both African-Americans and women from the jury during his 2005 trial for the cold-case murder of a store clerk 13 years earlier. Floyd was convicted by an all-white jury after the prosecutor – who identified African-American venire members in his notes with a “B” – struck 10 of 11 black potential jurors, and also used 12 of his 18 strikes to remove women. During the case’s first trip to the Supreme Court in October Term 2015, the court vacated and remanded for further consideration in light of its then-recent decision in Foster v. Chatman, which granted another death-row prisoner relief based on a not-dissimilar claim involving a prosecutor’s not-dissimilar notations. On remand in Floyd, the Alabama Supreme Court reinstated the conviction and sentence, suggesting that inconsistencies in testimony resulted from failure of memory rather than wrongdoing, and argued that Floyd had failed to timely raise his Batson v. Kentucky and J.E.B. v. Alabama claims at trial. Although someone at the Supreme Court is clearly taking a close look at this case — the court has already called for (and received) the record — the issue strikes me as a bit too fact-intensive and narrow for a plenary grant. But I’ve been wrong before.

And that brings us to the end of this installment. We’ll be back next week – which will be cut a day short by Veterans Day – with more half-cooked speculation.

Thanks to Kent Piacenti and Kevin Brooks for compiling the cases in this post.

========================================================

New Relists

Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(Relisted after the October 27 conference)

 

Returning Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6, October 13 and October 27 conferences)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6, October 13 and October 27 conferences)

 

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6, October 13 and October 27 conferences)

 

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6, October 13 and October 27 conferences)

 

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6, October 13 and October 27 conferences)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13 and October 27 conferences)

 

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6, October 13 and October 27 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13 and October 27 conferences)

 

Reeves v. Alabama, 16-9282 

Whether, when trial counsel does not testify about his or her own strategic decisions as part of a claim under Strickland v. Washington, a defendant may establish ineffective assistance of counsel using other evidence, as most circuit and state courts hold; or whether the presumption of sound strategy is categorically irrebuttable in the absence of trial counsel’s testimony, as the Alabama Court of Criminal Appeals held here.

(relisted after the October 13 and October 27 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews yesterday’s relists. For the first time during October Term 2017, we have had a week off between Supreme Court conferences. That’s great – everyone has had a little more time to chi–ll–ax and focus on what really matters. But now it’s Tuesday and the dockets are up to date and … no […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews yesterday’s relists.

For the first time during October Term 2017, we have had a week off between Supreme Court conferences. That’s great – everyone has had a little more time to chillax and focus on what really matters.

But now it’s Tuesday and the dockets are up to date and … no matter how many times we check, all we’ve been able to find is one lonely new relist. So there will be an air of familiarity as you read down this week’s list of cases.

Our sole new relist is a capital case out of Alabama. Reeves v. Alabama, 16-9282, concerns how a prisoner can establish that he received ineffective assistance of trial counsel under the familiar standard of Strickland v. Washington. Petitioner Matthew Reeves was convicted of shooting Willie Johnson – no, not that one – during a robbery. Reeves alleges that trial counsel failed to present any of the ample evidence in their possession that he suffered from intellectual disabilities, and their decision cannot “be explained by a decision to devote resources to an alternative strategy” or “other mitigating factors,” because they didn’t present any meaningful mitigation testimony. The Alabama court of criminal appeals rejected Reeves’ argument, noting that under Strickland, a prisoner bears the burden of overcoming the “strong presumption” that counsel rendered effective representation. Observing that Reeves had not presented the testimony of his trial counsel at the evidentiary hearing at which he alleged their ineffectiveness, the state court reaffirmed precedent holding that a prisoner alleging ineffective assistance “must, at his evidentiary hearing, question trial counsel regarding his or her actions and reasoning.” Before the Supreme Court, Reeves argues that the testimony of trial counsel is not necessary to establish ineffectiveness, but rather that ineffectiveness can be established through the testimony of other witnesses.

And with that, we’ve come to the end of the new relists. We’ll just have to make the best of the reruns until the next order list comes along.  But take heart, readers: That is just one week off.

Thanks to Kent Piacenti for compiling the cases in this post.

========================================================

New Relists

Reeves v. Alabama, 16-9282

Issue: Whether, when trial counsel does not testify about his or her own strategic decisions as part of a claim under Strickland v. Washington, a defendant may establish ineffective assistance of counsel using other evidence, as most circuit and state courts hold; or whether the presumption of sound strategy is categorically irrebuttable in the absence of trial counsel’s testimony, as the Alabama Court of Criminal Appeals held here.

(Relisted after the October 13 conference)

 

Returning Relists

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(relisted after the September 25, October 6 and October 13 conferences)

 

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6 and October 13 conferences)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6 and October 13 conferences)

 

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6 and October 13 conferences)

  

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6 and October 13 conferences)

 

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6 and October 13 conferences)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6 and October 13 conferences)

 

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6 and October 13 conferences)

 

Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6 and October 13 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relists. If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Tuesday’s relists.

If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is weird – it is a time when you can no longer count on basic things you took for granted.

But at least (cue obvious segue) we can count on one thing: The Supreme Court will relist a mess of new cases just as you’re trying to prepare for oral argument. This week is no exception: By my count, we have a whopping 10 new relists (to say nothing – and I do intend to say nothing – of four returning relists). And these are not small cases. For example, a case with a caption like United States v. Microsoft Corporation, 17-2, just sounds epic. And an epic case it is, presenting the issue of whether Microsoft must comply with a probable-cause-based warrant for email records that the company maintains in Ireland. The U.S. Court of Appeals for the 2nd Circuit concluded that Microsoft was not required to comply with the warrant, and Uncle Sam seeks to challenge that conclusion. The petition is also the rare relist that involves a case for which there is not – at least so far as I have found – a square circuit split on the narrow question presented. The case thus is seeking a position on the docket with Carpenter v. United States16-402, as a case so important that the Supreme Court takes it even in the absence of a square split.

And then there is a group of three cases out of U.S. Court of Appeals for the 9th Circuit that challenge a California law that requires licensed pregnancy-related clinics to disseminate a notice about the availability of publicly funded family-planning services, including contraception and abortion, and requires unlicensed clinics to provide extensive disclaimers. In National Institute of Family and Life Advocates v. Becerra, 16-1140, A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153, pro-life pregnancy centers challenge the law on compelled-speech and viewpoint-discrimination grounds, arguing that California enacted the law specifically to target such pro-life centers. These cases were originally conferenced back in June, and the Supreme Court has already called for and received the record in all three, so it’s clear the justices have been keeping a close eye on them.

The interesting free-speech issues do not end there: Minnesota Voters Alliance v. Mansky, 16-1435, presents another juicy one. Minnesota law forbids voters from wearing political badges, buttons and insignia at polling places. The U.S. Court of Appeals for the 8th Circuit upheld the law against a free-speech-clause challenge. The petitioners contend that the First Amendment doesn’t permit states to make even polling places “speech-free zones.”

And that is just the tip of the proverbial iceberg. The rest of the relists all concern criminal law. If I were not so busy, I’d tell you all about the fascinating double jeopardy case, the interesting wiretap case with the funny name, the state-on-top habeas cases and the court’s latest encounter with the much-litigated Armed Career Criminal Act. But I’ve gotta go now – those animal videos are not going to like themselves.

Thanks to Kent Piacenti for compiling the cases in this post.

========================================================

New Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6 conference)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146 

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6 conference)

  

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6 conference)

  

Currier v. Virginia, 16-1348

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

(relisted after the October 6 conference)

 

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6 conference)

 

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6 conference)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6 conference)

 

United States v. Microsoft Corporation, 17-2

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

(relisted after the October 6 conference)

 

Dahda v. United States, 17-43

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

(relisted after the October 6 conference)

 

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6 conference)

 

Returning Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(relisted after the September 25 and October 6 conferences)

 

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(relisted after the September 25 and October 6 conferences)

 

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any pro-competitive benefits from the provisions to American Express.

(relisted after the September 25 and October 6 conferences)

 

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(relisted after the September 25 and October 6 conferences)

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