Relist Watch Select™

John Elwood (barely) reviews Mondays’ suspected relists.

From time to time, our day jobs intrude and keep us from fully executing our important responsibilities for SCOTUSblog. When duty calls, we don’t have time to gloat about the things we got right, or obsess about the things we got wrong. This is one of those times. For times like this, it’s Relist Watch Select™.

It kills us to have to phone it in, since this week features one of the most attention-grabbing cases of a lackluster term, simultaneously implicating both the North Carolina transgender bathroom law and the most important administrative law question in recent memory. And that is to say nothing of a pair of cases that raise important issues involving arbitration.

This week’s installment is even more haphazard and approximate than usual. That’s because the court isn’t having another conference to discuss potential grants until October 28, and with no conference looming, the clerk’s office is slower in updating the dockets. So all we know for sure is that the court hasn’t acted on these petitions; until the dockets are updated, they could be relists, or they could be holds. Our best guess is that these are the relists, but prediction is very difficult, especially if it’s about the future. Tune in after Halloween for the terrifying denouement.

Resolved relists


Issue(s): (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

Cert denied with dissent. (relisted after the May 26, June 2, June 9, June 16, June 23, June 27, September 26, and October 7 conferences)


New (suspected) relists


Issue(s): Whether a state court can evade the preemptive force of the Federal Arbitration Act by framing its refusal to enforce an arbitration agreement as a product of supposed defects in “contract formation” that would not prevent the formation of any other contract.

(apparently relisted after the October 14 conference)



Issues: (1) Whether the trial evidence was sufficient to establish that the petitioner’s robbery of a dealer of illegal drugs “in any way or degree * * * affect[ed] commerce,” in violation of the Hobbs Act, 18 U.S.C. § 1951; and (2) whether a sentencing court, when sentencing a defendant who has been convicted of a firearms offense under 18 U.S.C. § 924(c) and a predicate crime of violence, may reduce the sentence for the predicate offense to lower the aggregate sentence that results from the consecutive, mandatory-minimum sentence for the Section 924(c) offense.

(apparently relisted after the October 14 conference)



Issue(s): Whether the Federal Arbitration Act pre-empts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

(apparently rescheduled before the October 7 conference so it could be considered with TAMKO Building Products above; apparently relisted after the October 14 conference)



Issue(s): Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

(apparently relisted after the October 14 conference)



Issues: (1) Whether this Court should retain the Auer v. Robbins doctrine despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled; (2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (3) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

(apparently relisted after the October 14 conference)


Returning relists


Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

(relisted after the September 26, October 7, and October 14 conferences)



Issue(s): (1) Whether a sentencing judge's exercise of discretion not to impose a death sentence is the functional equivalent of the findings required under Montgomery v. Louisiana to impose a sentence of life without parole on a juvenile offender; and (2) if not, whether the court should vacate the decision of the Arizona Court of Appeals and remand for further consideration in light of Montgomery.

Together with related cases Tatum v. Arizona, 15-8850; Najar v. Arizona, 15-8878; Arias v. Arizona, 15-9044; and DeShaw v. Arizona, 15-9057. (relisted after the September 26, October 7, and October 14 conferences)



Issue(s): Whether a state court violates a petitioner's federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26, October 7, and October 14 conferences)



Issue(s): Whether an individual inside a parked vehicle is seized within the meaning of the Fourth Amendment to the Constitution when a police officer activates a cruiser's emergency lights while positioned directly behind the parked vehicle, approaches the vehicle, knocks on the window of the vehicle, and directs the occupant to roll down the window.

(relisted after the October 7 and October 14 Conferences)


Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.

Posted in: Cases in the Pipeline