Petitions to watch | Conference of May 29
At its Conference on May 29, 2014, the Court will consider petitions seeking review of issues such as the preclusive effect of alternative holdings, preemption of state law nuisance claims under the Clean Air Act, and protection for journalists subpoenaed to reveal the identity of confidential sources.
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.
Issue: (1) Whether alternative holdings, each independently sufficient to sustain a judgment, all have preclusive effect in subsequent proceedings, as the Second, Third, Ninth, Eleventh, and D.C. Circuits hold, or whether none of them do, as the Fourth, Seventh, Tenth, and Federal Circuits hold; and (2) whether the mandate rule bars a party from relitigating an issue in the same case that was within the scope of a decision that was unequivocally affirmed.
Issue: Whether the Antiterrorism and Effective Death Penalty Act requires a presumption that claims are adjudicated on the merits where a state court ruling offers both a procedural bar to relief and a summary denial finding no colorable claims.
Issue: Whether the proper standard of appellate review after the United States Court of International Trade reviews an agency determination, finding, or conclusion for substantial evidence under 19 U.S.C. § 1516a is a judicially created standard, under which the Federal Circuit undertakes de novo review of the administrative determination (but with an undefined degree of “due respect” to the decision of the Trade Court)—unless the Trade Court remands for further explanation, in which case the Federal Circuit reviews for abuse of discretion.
Issue: Whether the Clean Air Act, which provides a comprehensive system for the regulation of air pollution in the United States and leaves “no room for a parallel track,” American Electric Power Co. v. Connecticut, preempts state common law nuisance claims that would impose emissions restrictions different from those adopted pursuant to the Act and expose companies operating in compliance with all applicable emissions standards under the Act to liability for their emissions.
Issue: (1) Whether journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial; and (2) whether a federal common law privilege should be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial.
Issue: Whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” CVSG: 10/30/2014.
Issue: 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: (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: (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: 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.
Recommended Citation: Maureen Johnston, Petitions to watch | Conference of May 29, SCOTUSblog (May. 27, 2014, 10:45 PM), http://www.scotusblog.com/2014/05/petitions-to-watch-conference-of-may-29/