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Relist Watch

John Elwood reviews Tuesday’s relisted cases.

In a week of disasters both natural and man-made, it’s inspiring to see someone put all their talents to use in the service of the greater good.  But kindly hold your applause until the end; we have another riveting edition of Relist Watch to get through.

We begin, as is the custom, by remembering the dearly departed from last week’s installment — what we might call the “de-lists,” not to be confused with bee-lists, c-lists, or, most horrific of all, the other d-lists. After pretty much giving the full “snipe hunt” treatment to Pruitt v. Nova Health Systems12-1170 — relisting it in June, holding it over the summer, and relisting it again last week after the DIG in Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094 — the Court finally ended the ordeal for Pruitt, which involved the constitutionality of an Oklahoma law requiring the performance and display of an ultrasound before an abortion is performed.  It was a hard end for the promising pair of Sooners.  Tuesday also marked the end of the line for Unger v. Young, 13-95, the state-on-top habeas case asking whether (1) a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas review, and (2) a habeas court can rely on studies that were not part of the state court record despite Cullen v. Pinholster’s rule that habeas review is limited to “the record that was before the state court that adjudicated the claim on the merits.” The denial prompted a dissent from Justice Alito, joined by Justice Scalia, who argued that the lower court’s holding on the record issue created “loopholes” in the Court’s habeas jurisprudence.

But while mourning the loss of their colleague, the other state-on-top habeas cases made it back for another week: Ryan v. Hurles, 12-1472 (asking whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim), and Rapelje v. McClellan, 12-1480 (asking whether dismissal “for lack of merit in the grounds presented” is an adjudication on the merits), both of which are being relisted for a noteworthy fifth time.  It’s about time for me to start confidently predicting dissents from denial so the Court can go ahead and grant (or deny without comment).  The Court also relisted one more time for a duo of cases in which it is waiting patiently for the record to arrive: Martin v. Blessing, No. 13-169 (fourth relist), involving a racially conscious class-certification order, and Woodward v. Alabama, No. 13-5380 (third relist), involving an “evolving standards of decency” Eighth Amendment challenge to a judge “imposing the death penalty through [jury] override.”  And to square things up round things out at an even odd five re-relisted cases, the Court relisted for a third time since receiving the record in Plumhoff v. Rickard, 12-1117, addressing the Sixth Circuit’s denial of qualified immunity to an officer in vehicular hot pursuit of a suspect.  Something is brewing there . . . unless it’s not.

Another slow week on the relist front.  This week’s lone new relist is Ford Motor Company v. United States, 13-113, asking when, if ever, a court exercising jurisdiction pursuant to a waiver of sovereign immunity may invoke the strict construction canon, applicable to such immunity waivers, to construe a separate statutory provision creating the substantive rights at issue.  The question really rolls off the tongue, doesn’t it?  The substantive-rights-creating statute at issue is a federal tax code provision involving the repayment of interest on tax overpayments, which Ford says totals nearly a half-billion dollars – nearly enough to finance fifteen seconds’ interest on the national debt.  It’s been a rough fall for Ford, or at least one of them – it’s about time for some good news.

And on that note, we’re done. We’ll be back next week with the same sad admixture of nearly useless information and minimally entertaining gifs, without which said information would likely go unread. Until then, thanks for stopping by!

Thanks to Conor McEvily for compiling and drafting this update.


(relisted after the September 30, October 11, October 18, November 1, and November 8 Conferences)


(relisted after the September 30, October 11, October 18, November 1, and November 8 Conferences)


(relisted after the September 30, October 11, October 18, November 1, and November 8 Conferences)


(relisted after the September 30, October 11, October 18, November 1, and November 8 Conferences)


(relisted after the October 11, October 18, November 1, and November 8 Conferences)


(relisted after the November 8 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 14, 2013, 11:29 AM),