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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

It’s hard, I know, but try not to let your excitement over Monday’s much-anticipated decision in Elgin v. Department of the Treasury, the Civil Service Reform Act case, overshadow an important milestone in judging:  This week marks the Tenth Anniversary of American Idol, the show that put the lie to all the critics who were saying that TV had gotten as bad as it possibly could.  Pause for a moment to contemplate the debt we owe Messrs Cowell and Jackson and Ms. Abdul for their long public service.  Unlike federal judges, with their light workloads and salaries that are the envy of the bar, the Idol judges faced (and in the case of Mr. Jackson, still face) swelling dockets of contestants without even a COLA to ensure they could afford life’s basic necessities.  But at least they have their dignity.

On that uplifting note, let’s turn to this week’s cases and last week’s jokes.  If the Guantanamo detainees wondered whether there could be anything worse than the limbo of not knowing what would happen with their much-relisted cases, they found out yesterday as the Court denied cert. in all seven cases nearly four years to the day after it held in Boumediene v. Bush that Gitmo detainees are constitutionally entitled to habeas review.  So long Al-Bihani v. Obama, 10-1383Uthman v. Obama, 11-413Almerfedi v. Obama, 11-683Latif v. Obama, 11-1027; Al Kandari v. Obama11-1054; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700.

In other serial-relist news, a unanimous Court summarily reversed in Parker v. Matthews, 11-845, the six-time-relist state-on-top habeas case out of the Sixth Circuit.  In a sharp rebuke, the Court held that the court of appeals clearly erred in looking to its own precedents rather than the Court’s in assessing the reasonableness of the Kentucky Supreme Court’s decision.  In light of the decision in Parker, the Court also GVRed the thrice-relisted Howes v. Walker11-1011, the state-on-top habeas cases out of the Sixth Circuit involving the interaction of two habeas provisions, Sections 2254(e)(1) and 2254(d)(2), a question the Court left open in Wood v. Allen (2010).

The rest of the old relists are back for another week.  The Court just cannot seem to get enough of Fairey v. Tucker11-7185.  Relisted now for an eighth time since the petitioner was denied in forma pauperis status, that state-on-bottom habeas case out of the Fourth Circuit is fast on its way to challenging Wetzel v. Lambert, 11-38, for the most-relisted case of the Term.  (Wetzel was relisted ten times before the Court, by a vote of six to three, summarily reversed.)   But as noted, the hold-up seems to be because the Court just cannot seem to get enough – of the record – which it requested back in mid-April and, judging by the docket, still hasn’t made its appearance.  I bet the state is really beginning to regret its decision to outsource its document retention to that cut-rate outfit in Ouagadougou, Ferrous Hillock.  Last up, Comcast Corp. v. Behrend11-864, is back for its fifth relist since the Court called for a response, the follow-on to Wal-Mart v. Dukes concerning the standard for class-action certification.  This has to be driving Comcast nuts; the Court said that it would review the case between ten and twelve o’clock last Thursday; Comcast sat at home that whole time, but it’s still waiting.

And now, finally, some new material.  Our new relist is a double-header, consisting of Mount Soledad Memorial Ass’n v. Trunk, 11-998, and United States v. Trunk, 11-1115.  In an effort to compensate for San Diego’s notorious lack of vistas and bad climate, over fifty years ago the Mount Soledad Memorial Association erected the Mount Soledad Veterans Memorial on a hill overlooking La Jolla.  The Memorial was acquired by the federal government in 2006 and, according to Congress, stands “as a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States.”  The dispute in the case concerns whether the Memorial – which consists of thousands of plaques honoring presidents, Medal of Honor recipients, admirals, generals, and soldiers, as well as, um, a giant cross – violates the Establishment Clause.  You will never guess which way the Ninth Circuit came out.  Spoiler alert: when the Ninth Circuit denied rehearing en banc, Judge Bea dissented, joined by Judges O’Scannlain, Tallman, Callahan, and Ikuta.  In its petition, the Association maintains that the Memorial satisfies the test in Justice Breyer’s concurrence in Van Orden v. Perry (2005), because the cross is merely a long-standing passive display on government property.

This week also brought us four new holds.  First up is FCC v. CBS, 11-240, in which the Third Circuit held, over a dissent from Judge Scirica, that the FCC’s adoption of its new broadcast-indecency regime violated the Administrative Procedure Act.  How that result is not foreclosed by the 2009 iteration of FCC v. Fox is a mystery to me, but I don’t have life tenure.  CBS is almost certainly being held for FCC v. Fox, 11-1293, involving a constitutional challenge to the FCC’s ban on fleeting expletives.  Henry Ford Health System v. HHS, 11-975, asks whether, pursuant to the Affordable Care Act, the Department of Health and Human Services can determine that, retroactive to 1983, time doctors spend conducting research does not count toward a hospital’s “resident count,” which is used to determine Medicare payments.  Although the Solicitor General’s brief in opposition argued that, because the petitioners were not challenging the constitutionality of the ACA, there was no reason to hold the case for HHS v. Florida, 11-398, and its high-profile brethren, the Court disagreed.  Readers eager for any shred of evidence about which way the Court might be leaning on the ACA cases – are there any of those? – might consider this an early indication that the Court will invalidate the entire Act.  More likely, though, the Court is routinely holding any case that might be affected by the ACA challenge to avoid showing its hand.

Next up is Foust v. Pennsylvania, 11-9072, out of the Pennsylvania state courts.  Foust looks like it might be a hold for the Eighth-Amendment-duo Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647, which ask whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment.  Like the petitioner in Whiteside v. Arkansas, 11-7979, which was held back in February, Mr. Foust appears to have been seventeen when he committed the murder for which he was sentenced to life imprisonment.  Last up is Cox v. United States, 11-10190Cox appears to be the latest hold for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, both of which concern the retroactivity of the Fair Sentencing Act amendment reducing the sentencing differential between crack and powder cocaine.

In its all-out effort to finish by the end of June, the Court will be conferencing yet again this Thursday.  So be sure to tune in next week for another dose of mildly illuminating insights and cringe-inducing “humor.”

Thanks to Victoria Galvez, Conor McEvily, and Eric White for compiling and drafting this update.  Many hands make light(er) work.

Mount Soledad Mem’l Ass’n v. Trunk (relisted after the 6/7 Conference)

Docket: 11-998

Issue(s):  Whether the Mount Soledad Veterans Memorial – recognized by Congress as a national veterans memorial that has stood for over fifty years “as a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States” – violates the Establishment Clause because it contains a cross among numerous other secular symbols of patriotism and sacrifice.

Certiorari stage documents


United States v. Trunk (relisted after the 6/8 Conference)

Docket: 11-1115

Issue(s):  Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause.

Certiorari stage documents


Comcast v. Behrend (relisted after the 5/10, 5/17, 5/24, 5/31, and 6/7 Conferences)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents


 Fairey v. Tucker (relisted after the 4/13, 4/20, 4/27, 5/10, 5/17, 5/24, 5/31, and 6/7 Conferences)

Docket: 11-7185

Issue(s):  Did the court of appeals err in dismissing the petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jun. 12, 2012, 3:05 PM),