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.


Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

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


Issue(s): (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

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


Issue(s): (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.

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


Issue(s): (1) Whether the increasingly rare and geographically isolated practice of imposing the death penalty through override violates the nation's evolving standards of decency and the Eighth Amendment; and (2) whether, when the jury determines that aggravation does not outweigh mitigation, the trial judge's override of that determination based on evidence not considered by the jury violates the defendant's Sixth Amendment right to a jury under Ring v. Arizona.

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


Issue(s): Whether an objecting class member – whose antitrust claims have been waived by a settlement negotiated by class counsel appointed by a racially conscious class-certification order – has standing to challenge the class-certification order and, through it, the antitrust settlement.

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


Issue(s): When, if ever, may a court exercising jurisdiction pursuant to a waiver of sovereign immunity invoke the strict construction canon applicable to such waivers to construe a separate statutory provision that creates the substantive rights at issue.

(relisted after the November 8 Conference)



Posted in Cases in the Pipeline

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