John Elwood reviews Monday’s relisted cases.

Welcome to the only Supreme Court blog post you will read this week that will say nary a word about Hollingsworth v. PerryUnited States v. Windsor,  gay marriage,  Proposition 8, or DOMA other than the minimum number of popular search terms necessary to avoid utter internet obscurity.  But now that I have attended to the demands of my Google overlords, let’s move on to this week’s relist update, which we dedicate to those hardy souls who camped out all weekend to watch the argument in Oxford Health Plans LLC v. Sutter.

We begin with last week’s success stories.  Both of Monday’s grants had spent time in the antechamber of cert.  First up is the Sixth Circuit’s closely split en banc decision in Schuette v. Coalition to Defend Affirmative Action, 12-682, striking down as unconstitutional another popularly enacted amendment to a state constitution: this time Prop 2, passed by voters in the Pleasant Peninsula in the wake of Gratz v. Bollinger to prohibit preferential treatment on the basis of race or sex in public-university admissions.  Although, as explained in last week’s post, the issue in Schuette is conceptually distinct from the issues in Fisher v. University of Texas at Austin, 11-345, it is related enough that scads of people are reading the tea leaves to determine what it may mean for that potential blockbuster.

The other grant concerned the Fifth Circuit’s decision in United States v. Woods, 12-562, regarding another hot-button issue that seems destined to ramp up the pressure for cameras in the courtroom: whether the underpayment penalty in Section 6662 of the Internal Revenue Code applies to a transaction whose sole purpose is to generate a tax loss.  Delighting fans of tax shelters and bad dance pop alike, Woods involves the transaction best known by the gerrymandered acronym “COBRA” (which purportedly stands for “currency options bring reward alternatives”).  To spice things up further, the Court asked the parties to address the additional question whether the district court even had jurisdiction under Section 6226 to consider the substantial valuation misstatement penalty.  (Woods’s fellow one-time relist and loyal sidekick, Alpha I, LP v. United States, 12-550, concerning the so-called “Son of BOSS” tax-avoidance strategy, appears now to be on hold pending the decision in Woods.)

On a less-happy note, unless you’re the U.S. Treasury, Monday brought bad news for the petitioners in two-time relist Sanchez v. United States, 12-335, the Federal Tort Claims Act case involving residents of Vieques, Puerto Rico, who will now have to content themselves with having near-perfect weather and an absence of ongoing live-fire exercises.

Two of last week’s relists are back:  Ninth Circuit state-on-top habeas case and two-time relist Nevada v. Jackson, 12-694, and, um, Ninth Circuit state-on-top habeas case and eight-time relist Marshall v. Rodgers, 12-382.  The Court may just need a little more time to digest the record it requested in Jackson.  Meanwhile, in Rodgers, barring an especially noteworthy glitch in the Clerk’s Office computer, it seems likely that some sort of an opinion is in the works.

Only one new relist: Elmbrook School District v. Doe, 12-755, concerns the constitutional propriety of a suburban Milwaukee school district’s decision to hold its graduation ceremonies in the very basic auditorium of a local church, which, unlike the school facilities, provided the three inalienable American rights: “ample parking, comfortable seating, and air conditioning.”  Over the dissents of Chief Judge Easterbook and Judges Posner and Ripple, the en banc Seventh Circuit held that the school’s action violated the First Amendment’s Establishment Clause because it “convey[ed] an impermissible message of endorsement” and “carried an impermissible aspect of coercion.”  The school district maintains that its decision to hold ceremonies at the church for fully secular reasons did not run afoul of existing Establishment-Clause jurisprudence.

That’s all for now.  The Court will be in Conference again this Friday, so I’ll be back in the driver’s seat next week with another relist watch full of fresh insights.  Until then, in my capacity as a non-administrator of the Elmbrook School District, I am free to say Chag Sameach and Happy Easter!

Thanks to Eric White for compiling and drafting this update.

12-755

Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

(relisted after the March 22 Conference)

 

12-694

Issue: Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

(relisted after the March 15 and March 22 Conferences)

 

12-382

Issue: 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.

(relisted after the January 4, January 11, January 18, February 15, February 22, March 1, March 15, and March 22 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Mar. 26, 2013, 10:17 PM), http://www.scotusblog.com/2013/03/relist-watch-10/