At its May 9, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of legislative prayer practices, successive habeas motions under the Antiterrorism and Effective Death Penalty Act, review of withdrawal from a remedy imposed by the Federal Energy Regulatory Commission, and a suspect’s requests to contact an attorney.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether a suspect unequivocally invokes his right to counsel under Edwards v. Arizona, when he makes a simple request to contact an attorney but does not express an unwillingness to speak with police without the attorney present.


Issue(s): Whether, when a prisoner’s first federal habeas motion results in the entry of a new sentencing judgment, a subsequent habeas motion is “second or successive,” within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§2244 and 2255(h), when it challenges the underlying conviction rather than the terms of the new sentence.


Issue(s): Whether the scope of preemption under the federal Copyright Act extends to state-law claims based on the misappropriation of the effort necessary to create widely-disseminated facts and ideas that have been reduced to tangible media and thus fall within the Act’s subject matter.


Issue(s): Whether the required records doctrine can be invoked to “override” or “supersede” the Fifth Amendment act-of-production privilege that concededly arises when, as here, the record-keeping requirement presumptively applies to all taxpayers and the compelled production of records would be testimonial and incriminatory.


Issue(s): Whether the Federal Energy Regulatory Commission (FERC) may refuse to examine the unduly discriminatory consequences of a wholly owned company’s withdrawal from a FERC imposed remedy adopted to eliminate undue discrimination on the facilities owned by six of Entergy’s subsidiary operating companies that serve customers in four states, but which are operated as a single integrated system, based solely on a provision of the Entergy affiliate tariff that permits withdrawal.


Issue(s): (1) Whether, when the suspect in custody makes an ambiguous or equivocal reference to counsel before receiving Miranda warnings, “clearly established Federal law” as determined by this Court forbids the police from advising the suspect of his Miranda rights and then conducting an interrogation after he waives them; and (2) whether, under the “highly deferential” standard of review set out in 28 U.S.C. § 2254(d), it was objectively unreasonable for the state court to conclude that respondent did not unambiguously and unequivocally invoke his right to counsel before receiving Miranda warnings.


Issue(s): Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.


Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.


Issue(s): Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.


Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.


Issue(s): Whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, are 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 a child’s statements in an interview with a child protection agency worker investigating suspicions of past abuse are “testimonial” evidence subject to the demands of the Confrontation Clause under Crawford v. Washington.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of May 9, 2013, SCOTUSblog (May. 7, 2013, 1:00 PM),