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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

In hindsight, it all looks so simple.  You can’t spell MONDAY without DOMA.  But you can spell ORDER LIST without GRANT.  Ergo, it should come as no surprise that, although the Defense of Marriage Act cases were the talk of the town yesterday, the Justices thought they’d hold on to those petitions a little while longer.

Let’s turn to the action on last week’s relists.  The Court denied cert. in two-time relist Hodge v. Kentucky, 11-10974, which involved the prejudice prong of the ineffective-assistance-of-counsel test.  Justice Sotomayor again found herself writing an opinion in a capital case, penning a ten-page dissent from denial of cert., saying she would have GVRed so the Kentucky Supreme Court could consider Hodge’s proposed mitigation evidence.  She also discussed at length Mr. Hodge’s “childhood marked by extreme abuse,” including “beatings [that] began in utero [when] Hodge’s father battered his mother while she carried Hodge in her womb . . . .”  Monday brought better news for the petitioner in Law v. Siegel, 12-5196, with the Court calling for the views of the Solicitor General.  As discussed last week, that case appears to concern the Bankruptcy Court’s ability to surcharge a debtor’s otherwise-valid homestead exemption under Section 105(a) of the Bankruptcy Code; I say “appears” because the pro se petition is, to use the Court’s favorite phrase to describe federal statutes, “not a model of clarity.”  We hope the lucky Assistant to the SG who finds this petition in his or her in-box has the background necessary to address it.  Finally, there was still no action on four-time relist Bond v. United States, 12-158, involving the high-society exploits of a playboy intelligence officer who never ages.  Although in the interests of accuracy I should note that Bond actually concerns Congress’s authority to enact legislation to implement a valid treaty.  I suspect an opinion respecting denial is in the works; when I say that, it is usually a sign that the Court is about to grant cert.

On to the new relists; there are a whopping ten of them, but they are all related, involving same-sex marriage and the Defense of Marriage Act, or DOMA.  The first of this set comes in the form of a trio of petitions arising from First Circuit companion cases.  Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill, 12-13, and Department of Health and Human Services v. Massachusetts, 12-15, both ask whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (which defines marriage as “only a legal union between one man and one woman as husband and wife”), violates the equal protection component of the Fifth Amendment’s Due Process Clause.  Massachusetts v. Department of Health and Human Services, 12-97, asks whether that section of DOMA violates the Spending Clause or the Tenth Amendment.  Unsurprisingly, the House members defending the DOMA (which, incidentally, passed that body by a lopsided vote of 342 to 67 back in the ancient days of 1996) have urged the Court to choose their petition to decide the constitutionality of DOMA.

Moving down the coast a bit, the Second Circuit also weighed in on the constitutionality of Section 3 – but, unlike the First Circuit, did so after applying “heightened scrutiny,” as opposed to (admittedly “intensified”) rational-basis review.  Both Windsor v. United States, 12-63, and United States v. Windsor, 12-307, tee up the same question as the first two First Circuit petitions:  Whether Section 3 deprives same-sex couples otherwise married lawfully under state law equal protection under the Fifth Amendment by restricting marriage to one man and one woman for purposes of federal law.  The United States urges the Court to choose its Windsor petition (12-307) as the best vehicle for reviewing DOMA.

Three other DOMA petitions seek to skip that mundane stop in the court of appeals and go straight to the top.  Office of Personnel Management v. Golinski, 12-16, is out of the Northern District of California, which held that Section 3 violates, yep, the equal protection component of the Fifth Amendment’s Due Process Clause.  Two others – Pedersen v. Office of Personnel Management, 12-231, and Office of Personnel Management v. Pedersen, 12-302 – concern the same Fifth Amendment objection to Section 3, this time arising out of a District of Connecticut opinion.  That court, too, held that the federal definition of marriage was unconstitutional, applying rational-basis review.

Then toss into the mix Hollingsworth v. Perry, 12-144, which concerns the constitutionality under the Fourteenth Amendment’s Equal Protection Clause of California’s Proposition 8, which amended the state constitution to effectively overturn a California Supreme Court ruling that itself overturned an earlier proposition banning same-sex marriage (but merely in statute form).  The Ninth Circuit – in a panel led by a Judge Reinhardt exercising considerable restraint – released a narrow opinion striking down the proposal, and the court denied en banc review.  As with the United States in the DOMA cases, the State of California has effectively abandoned the cause of defending the law.  Finally, to top it all off, there’s Brewer v. Diaz, 12-23, involving another Ninth Circuit opinion, this one declaring an Arizona law limiting health care benefits to state employees’ spouses and dependents (i.e., not to domestic partners) unconstitutional under the Equal Protection Clause.

Having just slogged through all of these cases, you probably have an idea why the Court relisted this whole tangle of cases:  It seems likely the Justices are still deciding which cases present the best vehicles for resolving the issues – after all, some have “vehicle problems.”  For example, Justice Kagan would likely need to recuse herself in at least the First Circuit cases (after all, she mentioned in her confirmation hearings that she was involved in the Gill case), which then raises the specter of a four-to-four tie.  And Windsor involves a couple who were married in Canada, not one of the United States.  And then the Court may have to decide what to do with Hollingsworth and Brewer – whether to grant in one or both of those cases or simply to hold them for the DOMA cases in case of broader pronouncements about gay marriage.

There is only one hold.  Coming to us out of the New Yawk state courts, Hall v. New York, 12-6519, arises from a manslaughter conviction for a 4 a.m. shooting outside a Manhattan club.  From the lower court opinion, it appears Mr. Hall’s pro se petition might concern problems with the police’s collection and use of Mr. Hall’s “historical ‘cell site location information’” without a warrant, which it used to identify Mr. Hall as the perpetrator.  But I have not been able to get hold of the cert. papers, so it’s difficult to know.  It seems like a stretch, but maybe it is being held for one of the OT2012 Fourth Amendment cases?  Or maybe there are similar cases coming down the pike?  There ought to be a blog that explains what’s going on.

That’s all for now.  This Friday, the Justices will be meeting for their last Conference of 2012.  So we’ll be back next week with the last Relist (and Hold) Watch of the year, which may be the last Relist (and Hold) Watch before the world ends.  You won’t want to miss that.

Thanks to Eric White for compiling and drafting this update.

[page]12-13[/page] (relisted after the November 30 Conference)


[page]12-15[/page] (relisted after the November 30 Conference)


[page]12-16[/page] (relisted after the November 30 Conference)


[page]12-23[/page] (relisted after the November 30 Conference)


[page]12-63[/page] (relisted after the November 30 Conference)


[page]12-97[/page] (relisted after the November 30 Conference)


[page]12-144[/page] (relisted after the November 30 Conference)


[page]12-231[/page] (relisted after the November 30 Conference)


[page]12-302[/page] (relisted after the November 30 Conference)


[page]12-307[/page] (relisted after the November 30 Conference)


Bond v. United States

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.

(relisted after the November 2, November 9, November 20, and November 30 Conferences)

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Dec. 4, 2012, 2:54 PM),