John Elwood reviews Tuesday’s relisted and held cases.

After granting in zilch last Monday, the Court gave a favorable nod to four cases Friday – including in one relist, more on which anon.  Looking at what happened to last week’s relists is like conducting a case study of fate’s caprice:  A bettin’ man could have expected decent odds that Shelby County v. Holder, 12-96 and Nix v. Holder, 12-81, both of which involved constitutional challenges to the 2006 reenactment of Section 5 of the Civil Rights Act, would rise or fall together (or at least that one would be held for the other).  Alas, the Court granted in Shelby County, then turned around and denied in Nix, probably because of some mootness issues.

Last week’s other three relists still await their ultimate fate.  There’s four-time-relister (counting from when the Court called for a response) Nitro-Lift Technologies, LLC v. Howard, 11-1377 (involving whether a state court can avoid enforcing an otherwise-valid arbitration agreement when it determines the underlying contract is against state public policy against covenants not to compete); three-timer Delling v. Idaho, 11-1515 (involving whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases); and, with a mere two times at bat, Bond v. United States, 12-158 (involving whether the Constitution’s structural limits on federal authority impose any constraints on Congress’s authority to enact legislation to implement a treaty).  In addition to facts that strike fear in the hearts of toxiphobes, Bond is notable for its highly unusual cert.-stage amicus brief supporting respondents, the Indian wild ass of amicus briefs.  Settle down now – that’s a comment on the rarity of such filings, not their content.  (Disclaimer:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Delling.)

One new case joins the ranks of relists.  Hodge v. Kentucky, 11-10974, a capital case coming to us from the highest court in the Bluegrass State, concerns the prejudice prong of the familiar Strickland v. Washington ineffective-assistance-of-counsel test.  Hodge argues that the Kentucky Supreme Court improperly required a nexus between the new mitigation evidence and the facts of the crime, and erred by “relying on evidence not in the record,” to wit, the court’s observation that “many, if not most, malefactors committing terribly violent and cruel murders are the subjects of terrible childhoods.”

The Court rounded out the day with two new holds.  Chau v. Massachusetts, 11-1473, concerns the retroactive application of Padilla v. Kentucky and so is almost certainly a straightforward hold for Chaidez v. United States, 11-820, which has racked up an impressive number of holds so far this Term.  Meanwhile, Lucas v. United States, 11-1536, is probably being held for Alleyne v. United States, 11-9335Lucas concerns 18 U.S.C. § 924(c)(1)(A), which makes it a crime to use or carry a firearm during and in relation to any crime of violence or drug trafficking offense, and provides graduated penalties if the gun is brandished or discharged.  The petition asks whether those are “escalating, fixed sentences” or “mere minimum sentences with implicit maximums of life in prison.”  (The Seventh Circuit, faced with what it termed a “barrage of arguments” challenging Lucas’s sentence, went with the latter.)  Alleyne, which tees up for a possible overruling the holding in Harris v. United States that the Constitution does not require facts that increase a mandatory minimum sentence to be determined by a jury, was granted after Lucas filed his petition.  But Lucas’s reply brief asks, as alternative relief, for the Court to hold the case pending its decision in Alleyne.

That’s all for this week.  Lest they get a reputation as predictable, the Justices are changing it up a little by holding their next Conference this coming Tuesday.  While the Court may release grants before heading off for Thanksgiving, we aren’t expecting a full order list until the Court returns on the 26th, so you all will be able to enjoy the holiday without suffering through another one of these posts.  So whether next week finds you enjoying a friendly pat-down from your local TSA agent, tolerating visiting in-laws with the help of Vodka-infused cranberry sauce, or toiling away mirthlessly at your desk, Happy Thanksgiving from the people at Relist (and Hold) Watch.

Thanks to Eric White and Travis Wimberly for drafting and compiling this update.

Hodge v. Kentucky (relisted after the November 9 Conference)

Issue(s):  Whether the Kentucky Supreme Court properly applied the Strickland prejudice prong when it required a nexus between the mitigation and the facts of the crime, and by applying additional criteria created an automatic death penalty under the facts of this case?

Nitro-Lift Technologies, LLC v. Howard (relisted after the October 12, October 26, November 2, and November 9 Conferences)

Issue(s):  Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and 45 years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).

Delling v. Idaho (relisted after the October 26, November 2, and November 9 Conferences)

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue(s):  Whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases.

Bond v. United States (relisted after the November 2 and November 9 Conferences)

Issue(s):  (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Nov. 15, 2012, 10:27 AM),