At its February 15, 2013 Conference, the Court will consider petitions seeking review of issues such as the standard for determining obscene material, the Federal Election Campaign Act and the First Amendment, reserving business opportunities for in-state companies, and the definition of “principal activities” under the Fair Labor Standards Act.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, permits an employee of a public entity who is a qualified individual with a disability to bring a claim against the public entity for employment discrimination.



Issue(s): Whether, when a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.



Issue(s): Whether the 300,000-acre ancient Oneida reservation in New York still exists, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries.



Issue(s): (1) Whether the ban on campaign contributions by corporations in the Federal Election Campaign Act, 2 U.S.C. §441b, violates the First Amendment; and (2) whether restrictions or bans on the right to make campaign contributions should be reviewed under strict scrutiny, as other restrictions on political expression are, or instead under a less protective standard.



Issue(s): Whether the filed-rate doctrine exempts a cartel from from federal antitrust damages liability for price-fixed rates filed with a state agency, given (a) there is no meaningful review of the filed rates by the agency, (b) the agency is unable to award retrospective compensatory relief for the unlawful conduct, and (c) the private cartel price-fixing would not be exempt under the state action doctrine due to lack of “active supervision” by the agency.



Issue(s): Whether the Ninth Circuit correctly held that an equitable lien by agreement cannot be enforced under Section 502(a)(3) of the Employee Retirement Income Security Act if, after the lien attaches, the defendant dissipates the sought-after fund.



Issue(s): (1) Whether the Fourth Circuit created an impermissible end-run around Harrington v. Richter, Cullen v. Pinholster, and the Antiterrorism and Effective Death Penalty Act by holding that a state court’s merits determination is not an “adjudication on the merits” whenever the state prisoner later presents the federal court with new material evidence and the state court decided the ineffective assistance claim without an evidentiary hearing and (2) whether the Fourth Circuit wrongly ignored 28 U.S.C. § 2254(d) and Strickland v. Washington in concluding as a de novo matter, and contrary to the Virginia Supreme Court and Strickland, that trial counsel were ineffective for deciding not to argue mental retardation at sentencing?



Issue(s): Whether the court of appeals erred in holding that a state regime that reserves a valuable business opportunity to in-state businesses, and excludes out-of-state businesses that compete for the same customers in the same market, can escape meaningful scrutiny simply on the ground that the direct competitors employ different business models or are otherwise deemed differently situated by the state.



Issue(s): (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.



Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.



Issue(s): (1) Whether jury decisions that material is obscene – either obscene for all viewers or just for minors – should be reviewed using the independent appellate review mandated by Bose Corp. v. Consumers Union of U.S., Inc. and Jenkins v. Georgia, as there is a split on this question among state courts of last resort and federal circuit courts; and (2) whether this Court should provide lower courts with a benchmark precedent about what material is “obscene as to minors” or “harmful to minors,” by deciding whether roughly drawn pictures, lacking in sexual content, sent by a father to his wife to be shown to his young child are properly viewed as “obscene as to minors.”


Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s): Whether the Sixth Amendment right to jury trial, as applied to the states through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of February 15, 2013, SCOTUSblog (Feb. 7, 2013, 4:29 PM),