John Elwood reviews Monday’s relisted cases.
This week, the Court cleared the decks of several oldies but goodies. Apparently unable to wait any longer to share the good news, on Friday the Court granted cert. in thrice-relisted Plumhoff v. Rickard, 12-1117, addressing the Sixth Circuit’s denial of qualified immunity to an officer in vehicular hot pursuit, as suggested by my ambiguous and deniable quasi-prediction last week. Other green sprouts met an unhappy end, but not without the unsuccessful petitioner’s consolation prize – the opinion respecting (or dissenting from) denial of certiorari; we got a whopping three of them on Monday in serial relists, suggesting that 9,000 cert. petitions a year, argument sittings every two weeks, and a couple merits opinions per month simply isn’t enough to fully occupy a Justice’s time. The Court denied cert. in Rapelje v. McClellan, 12-1480 (after five relists), prompting a dissent from Justice Alito (joined by Justice Scalia), arguing that, contrary to the Sixth Circuit’s “serious misreading” of Harrington v. Richter, a federal court may not look behind a state court’s assertion that a summary disposition is a decision on the merits. The Court also denied cert. in Martin v. Blessing, No. 13-169 (four relists), involving a district court’s racially conscious class-certification order. Justice Alito agreed that the “uniqueness” of the district court’s practice in issuing such orders “weighs against review by th[e] Court,” but he found himself “hard-pressed to see any ground on which [the] practice can be defended” and suggested that “future review may be warranted” if it continues. Finally, the Court denied cert. in Woodward v. Alabama, No. 13-5380 (three relists), prompting a dissent from Justice Sotomayor expressing “deep concern” that Alabama’s practice of allowing a judge to impose a death sentence in the face of a contrary jury verdict offends the Sixth and Eighth Amendments. (Justice Breyer joined as to the Eighth Amendment analysis but not the Sixth Amendment, given his position in Apprendi v. New Jersey and Ring v. Arizona.)
Without any new passengers coming down the jetway, the Relist Watch frequent-flyer lounge is starting to be a pretty lonely place. The Court did delay take-off once more for (six-time-relisted) Ryan v. Hurles, 12-1472, involving whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim. And the Court will take another look at the appealing new offerings of Ford Motor Company v. United States, 13-113, involving the interaction of the strict construction canon for sovereign immunity and the interpretation of a separate statutory provision creating substantive rights.
With that, this week’s uncharacteristically low-blather update draws to a close. We yield back the balance of our time confident that both of our readers will use it in a similarly highly productive manner.
Thanks to Jeremy Marwell and Conor McEvily for compiling and drafting this update.
Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.
(relisted after the September 30, October 11, October 18, November 1, November 8, and November 15 Conferences)
Issue(s): When, if ever, may a court exercising jurisdiction pursuant to a waiver of sovereign immunity invoke the strict construction canon applicable to such waivers to construe a separate statutory provision that creates the substantive rights at issue.
(relisted after the November 8 and November 15 Conferences)
Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 19, 2013, 3:04 PM), http://www.scotusblog.com/2013/11/relist-watch-27/