At its Conference on May 22, 2014, the Court will consider petitions seeking review of issues such as the validity of an Alabama redistricting plan under the Voting Rights Act of 1965, the scope of an anti-retaliation provision under Title VII of the Civil Rights Act of 1964, and the standard to determine a “true threat” under the First Amendment.

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 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.

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

Issue(s): Whether Alabama’s effort to redraw the lines of each majority-black district to have the same black population as it would have using 2010 census data as applied to the former district lines, when combined with the state's new goal of significantly reducing population deviation among districts, amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act; and whether these plaintiffs have standing to bring such a constitutional claim.


Issue(s): Whether Section 704(a) of Title VII of the Civil Rights Act of 1964 prohibits retaliation against a worker because of the worker’s statements: (1) only when the statements are made to the worker’s own employer or to federal or state anti-discrimination agencies (the rule in the Tenth and Fourth Circuits), or (2) also when the worker’s statements are made to any other person (the rule in the First, Second, Third, Fifth, Sixth and Ninth Circuits).

Disclosure: John Elwood, a frequent contributor to this blog, is among the counsel to the petitioner in the case.

Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.


Issue(s): Whether the Eighth Circuit applied the incorrect standard of review and erred in upholding the Environmental Protection Agency’s assertion of authority to overrule the reasonable policy and technical decisions made by the state of North Dakota in its Visibility Program state implementation plan, contrary to the authority delegated to the state under the Clean Air Act, and in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act.


Issue(s): Whether, despite the Regional Haze Program of the Clean Air Act, which allocates to the states the task of fashioning and then implementing plans to improve the aesthetic quality of air over certain federal lands, the United States Environmental Protection Agency may nonetheless conduct a de novo review of the state of Oklahoma’s plan, in conflict with both the limited authority granted to the agency under the Act and decisions of this and other courts that have recognized the primary role given to the states in implementing the Clean Air Act.

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

Issue(s): Whether Alabama's legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.


Issue(s): Whether the Federal Circuit erred in requiring issue exhaustion during nonadversarial proceedings before the Department of Veterans Affairs Board of Veterans’ Appeals.



Issue(s): Whether the United States Constitution prohibits a state from taxing all the income of its residents -- wherever earned -- by mandating a credit for taxes paid on income earned in other states.



Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment allows a social worker to take temporary custody of a child, without advance notice and pre-deprivation evidentiary hearing, when the social worker has probable cause to believe that the child has been abused; and, if not, whether the contrary legal principle was clearly established in 2002; and (2) whether the Sixth Circuit erred by conducting its qualified-immunity analysis of the children’s Fourth Amendment claim at a high level of generality and holding that the “absence” of case law specifically mentioning social workers was enough to clearly establish that the Fourth Amendment applies in the context of child-safety seizures by social workers in the same manner as in the criminal-law context.


Issue(s): (1) Whether the Ninth Circuit improperly held that Martinez v. Ryan provides a “more lenient rule . . . for excusing procedural default” than does Coleman v. Thompson, and encompasses both cause and prejudice to excuse the procedural default of a habeas claim; and (2) whether the Ninth Circuit improperly removed the prejudice prong from an analysis of ineffective assistance of post-conviction counsel as provided in Martinez and Strickland v. Washington.


Issue(s): (1) Whether the Mississippi Supreme Court erred in holding that the Confrontation Clause of the Sixth Amendment permits a forensic analyst to inform the jury of the results of forensic testing of DNA evidence that she did not participate in or observe, so long as she is “familiar with each step of the complex testing process conducted by” the non-testifying expert and “conducted her own [comparison] analysis” of the DNA profiles generated by the non-testifying expert; (2) whether the court below erred in holding that the Eighth and Fourteenth Amendments permit the exclusion from a capital trial of a defendant’s proffered evidence of the harsh and suffering prison conditions he would face if the jury elected a sentence of life imprisonment instead of execution, where such evidence rebuts the argument that the death penalty is needed to hold the defendant accountable, rebuts the state’s suggestion of future dangerousness, and is constitutionally relevant mitigation evidence; and (3) whether a violation of the Eighth Amendment’s requirement that jurors be permitted to form a reasoned moral response to the defendant’s background, character, and crime may be excused as harmless error, as the court below and some United States courts of appeals have found, or whether such constitutional error must require automatic reversal of the death sentence, as other United States courts of appeals have held.


Issue(s): Whether forensic pathology reports are testimonial for purposes of the Confrontation Clause.

Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case through the Stanford Law School Supreme Court Litigation Clinic.

Issue(s): Whether the Confrontation Clause of the Sixth Amendment permits a forensic analyst who did not observe or participate in any of the forensic testing at issue to tell the jury the conclusions that another analyst set forth in a testimonial forensic report – so long as the testifying analyst offers an “independent opinion” that, based on reviewing the other analyst’s report and notes, she agrees with other analyst’s conclusions.


Issue(s): (1) Whether the Confrontation Clause prohibits a government expert, who merely reviewed a nontestifying forensic analyst’s certified report, notes, and results and did not personally conduct or observe any of the relevant analyses, from testifying regarding the analyst’s procedures and conclusions and opining on the analyst’s results; and (2) whether the Seventh Circuit erred by applying a harmless-error standard that ignores the impact that testimony admitted in violation of the Confrontation Clause, which the government relied on in closing arguments, had on the jury, and instead focused on the sufficiency of the remaining evidence, directly conflicting with this Court’s precedent and that of other federal courts of appeals.


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.


Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of May 22, SCOTUSblog (May. 19, 2014, 10:45 PM),