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Relist (and hold) watch

John Elwood reviews Monday’s relisted and held cases.

Wow.  So many people were looking for Relist Watch on Tuesday that it nearly crashed SCOTUSBlog.  Who would have thought my little posts were so popular?  I joke, of course (although as usual, you can’t tell because it’s not funny).  This is the one place you aren’t going to read the words “Affordable Care Act,”  “ObamaCare,” or “individual mandate,” except for the words I just salted into my post in cynical effort to increase my SEO.  (And while I’m at it: Lady Gaga, Lindsay Lohan, Paris Hilton.)

Both of last week’s featured cases have moved out of the purgatory of relist status.  One moved up:  The Court granted cert. in the one-time relist Florida v. Harris, 11-817, concerning whether an alert by a narcotics-detection dog alone is sufficient to show probable cause for a vehicle search.  (Looks like at least four Justices smell a reversal.)  One moved out: The Court denied without recorded dissent in two-time relist Smith v. Fields, 11-561, involving an Eighth Amendment challenge to a Wisconsin law prohibiting prisoner sex changes.

Out with the old and in with the new, I say, and this week brings us two fresh relists.  The first is a dormant Commerce Clause case out of the Tenth Circuit.  Tarrant Regional Water District v. Herrmann, 11-889, concerns the Red River Compact, an interstate water compact approved by Congress that grants signatory states “equal rights” to the Red River’s surface water but adds that the compact should not “be deemed . . . to interfere” with each state’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact.”  The Tarrant Regional Water District, which includes the Texas cities of Fort Worth and Arlington, sued Oklahoma, alleging that that state prohibited transferring Red River water to out-of-state applicants in violation of the Commerce Clause.  The Tenth Circuit sided with Oklahoma, holding that the language in the Red River Compact evidenced Congress’s intent that signatory states have control over the water within their borders, obviating any dormant Commerce Clause concerns.  Given how common such compacts are in the arid West, this seems like a case the Court might take a close look at.

The other new relist is Dorsey v. Louisiana, 11-8470, not to be confused with Dorsey v. United States, 11-5683, the Fair Sentencing Act case we know and love, of which more anon.  Dorsey, an African American, was convicted and sentenced to death for the murder of a white firefighter in Caddo Parish, Louisiana, in a courthouse with a Confederate flag flying out front (which has since been removed).  Despite the fact that African Americans make up nearly half the Parish’s population, Dorsey’s jury consisted of eleven whites and one African American.  The Louisiana Supreme Court held that a statistical showing that the prosecution exercised peremptory challenges against seventy-one percent of prospective African-American jurors compared to only twenty-two percent of prospective white jurors was insufficient to make a prima facie Batson claim.  The hold in this case might have something to do with the fact that the Court called for a response on March 20 from the Orleans Parish District Attorney in Holand v. Louisiana, 11-8915, a non-capital case presenting a similar issue; in Holand, ten out of eleven strikes were of African Americans.

There are only three new holds to report this week.  And I’ve developed a new mathematical postulate:  given three or more holds, the chance that at least one will be a Fair Sentencing Act hold approaches one hundred percent.  Today, two of our three holds, Boomer v. United States, 11-8737, and Gibbs v. United States, 11-8778, appear to be awaiting Dorsey (the “v. United States” one) and Hill v. United States, 11-5721, which of course concern the retroactivity of an amendment to the FSA reducing the sentencing differential between crack- and powder-cocaine sentences.  Quod erat demonstrandum.  The other relist, Maryland v. Derr, 11-694, looks like a hold for Williams v. Illinois, 10-8505Derr and Williams raise the question whether it violates the Confrontation Clause for a testifying expert to rely on the results of DNA analysis conducted by non-testifying analysts in order to explain the basis of his independent opinion.

That’s all for now.  Workaholics that they are, in spite of the pressure of this week’s health-care lawyerpalooza, the folks at One First Street will be in Conference again this Friday.  So join us back here next week for another exciting edition of Relist (and Hold) Watch!

Thanks to Eric White for compiling and drafting this update.

Tarrant Regional Water Dist. v. Herrmann (relisted after the 3/23 Conference)

Docket: 11-889

Issue(s): (1) Whether Congress’s approval of an interstate water compact that grants the contracting states “equal rights” to certain surface water and—using language present in almost all such compacts—provides that the compact shall not “be deemed . . . to interfere” with each state’s “appropriation, use, and control of water . . . not inconsistent with its obligations under this Compact,” manifests unmistakably clear congressional consent to state laws that expressly burden interstate commerce in water; and (2) whether a provision of a congressionally approved multi-state compact designed to ensure an equal share of water among the contracting states preempts protectionist state laws that obstruct other states from accessing the water to which they are entitled by the compact.

Certiorari stage documents

Dorsey v. Louisiana (relisted after the 3/23 Conference)

Docket: 11-8470

Issue(s):  (1) Whether “bare statistics are insufficient” to support a prima facie case of discrimination in a Batson violation; and (2) whether a trial court’s determination at the initial or prima facie stage of the Batson analysis is reviewed under the “abuse of discretion” standard.

Certiorari stage documents


Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (Mar. 29, 2012, 12:39 PM),