John Elwood reviews Monday’s relists.

So in the April 7 edition, we trumpeted that that the newly installed Justice Neil Gorsuch would surely participate in his first conference on April 13. Wrong! As indicated in a footnote in the next order list, the new junior justice sat that conference out (as it turns out, getting ready for the April sitting). So of course we confidently predicted in the April 21 edition that Gorsuch was no doubt going to be in full-on note-taking mode at that day’s conference. Less Wrong. When the order list came out the following Monday, there were no asterisks announcing he hadn’t participated in considering the cases as a general matter. But the order list stated repeatedly, for applications, petitions, rehearing petitions, mandamus petitions and habeas corpus petitions, that “Justice Gorsuch took no part in the consideration or decision of this [matter].” If you counted everything up, the only matters Gorsuch discussed with his colleagues at that conference were five cert petitions (including one serial relist that was denied without comment, one serial relist that occasioned two opinions and one capital case that drew a dissent from Justice Stephen Breyer); two rehearing petitions in capital cases that previously were serial relists; and, most unusual of all, a decision granting a movant’s request to “proceed as a veteran” and thus pay no filing fees under Supreme Court Rule 40.

So why should you care about any of that? You shouldn’t. You should be out frolicking in the spring weather, or enjoying the monuments or doing something normal people do. But you’re not. You’re reading a Supreme Court blog. Reflect on your poor life choices for a moment.

But anyway, I’m not suggesting that Gorsuch is a slouch or something. Far from it. The point is that the “shadow” that is left over after we remove all the cases Gorsuch didn’t participate in gives us the rare opportunity to observe the inner workings of the court. My best guess is that we’re seeing the “discuss list” in action. The justices can’t possibly discuss each of the filings they receive (around 8,000 cert petitions per year, to say nothing of habeas and rehearing petitions and various applications). So through the cert pool and other mechanisms, the justices identify a subset of cases that they need to discuss at their regular private conferences, known as the “discuss list.” Any justice can put a case on the discuss list. The cases that are not selected for discussion are presumptively denied, and thus included on the “dead list.” (It’s all explained in great detail at the last hyperlink.) So the likeliest explanation seems to be that most of the cases for the last conference were “deadlisted” through the cert pool and the court’s other regular mechanisms before Gorsuch began participating in the cert process, and he got up to speed on, and discussed, only the matters that were placed on the discuss list for that conference. It’s rare that people are able to lay their hands on copies of past discuss lists, which are not public documents. So it’s significant (if I’m right) to see one in real time. I’m rarely earnest (or even non-idiotic) in this feature, but let me say in all sincerity: This is kind of neat.

OK. The moment of sober reflection has passed. Let’s talk about the cases that the court is apparently going to talk about at Friday’s conference.

To begin with, with the exception of the denials noted above, all of our (many) relists are back again this week. Including, let me hasten to add, the group of tax retroactivity cases. Thank you, tax bar, for the many polite notes I received from you informing me of how truly exciting those cases really are. Sincere apologies if I killed your vibe by calling the cases “dull but important,” but I’ve been a lawyer for 23 years, and I thought that was a compliment.

In addition, this week, the knot of relisted cellphone-data cases we identified last week grew by one, with the addition of Rios v. United States, 16-7314. The case adds what I believe is a new wrinkle to the group, in that it is the first to involve “real-time” cellular-phone location data, rather than historical data. But I suspect that even if a grant is in the offing, this case won’t be the vehicle, at least not yet: The respondent (the United States) waived its right to file a brief in opposition, and the court doesn’t ordinarily grant without at least calling for a response.

That brings us to our other new relist for the week: Patchak v. Zinke, 16-498. That case involves a follow-on to the spellcheck-challenging case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, which held that the government had waived sovereign immunity so that a suit challenging the Department of the Interior’s action taking a certain plot of land into trust for an Indian tribe could proceed. While summary judgment briefing was underway, Congress enacted a statute that (according to the solicitor general) reaffirmed the trust status of the land, ratified the secretary’s decision to take the land into trust, and (according to the petitioner) did not otherwise amend the underlying substantive or procedural laws. What is undisputed is that the statute directed that any pending or future case “relating to” the property in question “shall be promptly dismissed.” Cases involving so-called “jurisdiction-stripping” statutes are undoubtedly interesting – not Multistate Tax Compact interesting (what is?), but good anyway.

Anyway, the questions presented are (1) whether a statute directing the federal courts to “promptly dismiss[]” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles; and (2) whether a statute that does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

Surely, Gorsuch is “all-in” for this week’s conference. Tune in next time as I ask, “how wrong can I be before I am right?”

Thanks to Bryan U. Gividen for compiling the cases in this post.

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Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March March 17, March 24, March 31, April 13 and April 21 conferences)

 

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 and April 21 conferences)

 

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals — that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the April 13 and April 21 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13 and April 21 conferences)

 

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13 and April 21 conferences)

 

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

(relisted after the April 13 and April 21 conferences)

 

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13 and April 21 conferences)

 

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 and April 21 conferences)

 

Merit Management Group, LP v. FTI Consulting, Inc., 16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

(relisted after the April 13 and April 21 conferences)

 

North Carolina v. North Carolina State Conference of the NAACP, 16-833

Issues: (1) Whether a federal court has the authority to reimpose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2.

(relisted after the April 13 and April 21 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13 and April 21 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13 and April 21 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13 and April 21 conferences)

 

New Relists

Patchak v. Zinke, 16-498

Issues: (1) Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles; and (2) whether a statute that does not amend any generally applicable substantive or procedural laws, but deprives the petitioner of the right to pursue his pending lawsuit, violates the due process clause of the Fifth Amendment.

(relisted after the April 21 conference)

 

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3)  whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21 conference)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Asterisk Watch, SCOTUSblog (Apr. 27, 2017, 11:59 AM), http://www.scotusblog.com/2017/04/asterisk-watch/