John Elwood reviews Tuesday’s relisted cases.

Life in Washington is slowly returning to normal as crews work to dig residents out from beneath piles of fresh powder, so that a mere thirty-six hours after a moderate snowfall, schoolchildren in the capital of the most powerful nation on Earth are back in class.  Happily, the Justices are made of sterner stuff, and aside from minor disputes over whose turn it is to run the snowblower, they’ve been busy with business as usual:  unleashing blizzards of denials, carving out the occasional snow rollers of grants, and leaving behind a few stray flakes of relists.

We begin, as always, with the old business.  All three of Friday’s grants are alumni of this column: Both of the warrantless cellphone search cases spent time on hold here,  and Lane v. Franks, 13-483, involving whether a public employee can make a First Amendment retaliation claim if fired for providing sworn testimony compelled by a subpoena, was featured here last week.  Lane’s fellow traveler, the spellcheck-flummoxing Bianchi v. Chrzanowski, 13-498, is now presumably being held for it.  (Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in Lane.)

Other relists didn’t fare so well.  Unfortunately for the petitioner in the once-relisted Perez-Guererro v. Holder, 13-323, the Court opted not to address the circuit split over whether the REAL ID Act of 2005 implicitly stripped Article III jurisdiction over appeals concerning deferrals of removal; the Justices ordered the case removed to the Land of Failed Petitions.  Having reviewed the once-relisted Fugit v. United States, 12-10591, involving the dispute between Judges Wilkinson and Posner over what “sexual activity” means for the crime of enticing a minor, the Justices said “Aw, Fugit” and moved on.  Bad news also for the Kansas SG’s office:  The Court denied cert. in Kansas v. Swindler, 13-52, in which the Sunflower State’s high court suppressed as involuntary statements an unfortunately named criminal defendant made to state investigators after he told them he wanted to leave.

Five of last week’s relists are back for another round of freeloading off the Court’s docket.  The first should come as no surprise:  the Kato Kaelin of relists, Ryan v. Hurles, 12-1472, has been living in the Justices’ guest house for a remarkable eleven relists.  The case asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  Since I’ve been predicting an opinion (maybe opinions) respecting denial since time immemorial, maybe if I predict yet another relist, the Court will finally eject this case from its cabana.

Also back are the closely watched smelly washing machine cases, BSH Home Appliances Corp. v. Cobb, 13-138; Sears, Roebuck and Company v. Butler, 13-430; and Whirlpool Corp. v. Glazer, 13-431, concerning the scope of Federal Rule of Civil Procedure 23(b)(3)’s requirement that classwide issues predominate over individual ones.  Rounding out the reruns is Williams v. California, 13-494, a capital case involving a Batson challenge arising out of a crime allegedly committed in California’s newest entrepreneurial hot spot.

Three newbies join the lineup.  For those who like their constitutional theory with a pinch between the cheek and gum, there’s McLane Southern, Inc. v. Bridges, 13-657, out of the Louisiana Court of Appeals.  Louisiana has imposed an excise tax on mouth-watering smokeless tobacco based on the price invoiced to the first distributor to bring the product into the state, which allegedly provides an unfair advantage to in-state distributors over out-of-state ones in violation of the Commerce Clause.

Elsewhere in tax discrimination news, Alabama Department of Revenue v. CSX Transportation, Inc., 13-553, involves a general sale-and-use tax that exempts railroads’ competitors (but not railroads).  If that sounds familiar, it might be because a previous iteration – CSX Transportation, Inc. v. Alabama Department of Revenue, 09-520 – was before the Justices in October Term 2010, and CSX prevailed.

Now’s the time we get to disappoint those who thought they could make it through an entire post without having to read the words “Anti-Terrorism and Effective Death Penalty Act.”  Coming to us from the Land of the State-on-Top Habeas Petition is Hoffner v. Walker, 13-603, in which officials from a certain oven-mitt-shaped state contend that its state court of appeals’ prejudice ruling on an ineffective-assistance-of-counsel claim was not so unreasonable as to warrant habeas relief.  An earlier iteration of the case was GVR’d and returned to the Sixth Circuit in light of the Court’s per curiam decision in Parker v. Matthews, which criticized the court of appeals for vacating a conviction on the “flimsiest of rationales.”  On remand, the court of appeals again granted habeas relief in light of what it determined was the trial counsel’s failure to put on any evidence in support of an insanity defense to first-degree murder.  In the case’s second trip to the Court, the new Michigan SG argues that the Sixth Circuit failed to accord the state court proper deference under AEDPA.

That’s all for now.  The Justices are meeting again this Friday, so we’ll be back next week spewing our usual admixture of misinformation and corrupted hyperlinks.  Until then, we at Relist Watch, in cooperation with the good folks at the American Pie Council, wish you and your loved ones a happy National Pie Day.  In crust we trust.

Thanks to Conor McEvily and Eric White 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, November 8, November 15, November 26, December 6, December 13, January 10, and January 17 Conferences)


Issue(s): (1) Whether after Comcast Corp. v. Behrend the absence of a showing that injury can be proved on a classwide basis precludes class certification under Federal Rule of Civil Procedure 23(b)(3); and (2) whether at the class certification stage of litigation a district court must analyze the admissibility of expert testimony under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.

(relisted after the January 10 and January 17 Conferences)


Issue(s): (1) Whether the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) is satisfied by the purported “efficiency” of a class trial on one abstract issue, without considering the host of individual issues that would need to be tried to resolve liability and damages and without determining whether the aggregate of common issues predominates over the aggregate of individual issues; and (2) whether a product liability class may be certified where it is undisputed that most members did not experience the alleged defect or harm.

(relisted after the January 10 and January 17 Conferences)


Issue(s): (1) Whether the of Federal Rule of Civil Procedure 23(b)(3) predominance requirement can be satisfied when the court has not found that the aggregate of common liability issues predominates over the aggregate of individualized issues at trial and when neither injury nor damages can be proven on a classwide basis; and (2) whether a class may be certified when most members have never experienced the alleged defect and both fact of injury and damages would have to be litigated on a member-by-member basis.

(relisted after the January 10 and January 17 Conferences)


Issue(s): (1) Whether, as some courts have held, reviewing courts are required to accord “great deference” to unexplained Batson v. Kentucky rulings where the trial court does not demonstrate on the record that it has evaluated “all of the circumstances that bear upon the issue of discrimination,” or whether, in light of Snyder v. Louisiana and as other courts have held, reviewing courts should not defer to the trial court’s unexplained determination of a Batson objection; (2) whether a reviewing court may defer to a trial court’s Batson ruling where the trial court acknowledges that it is unable to independently evaluate the prosecutor’s contested, demeanor-based explanation and denies a Batson motion by simply accepting the prosecutor’s stated reason after observing that it comports with racial and gender stereotypes the judge believes to be true.

(relisted after the January 10 and January 17 Conferences)


Issue(s): Whether the Commerce Clause of the United States Constitution allows States to tax goods distributed by out-of-state wholesalers more heavily than goods distributed by in-state wholesalers.

(relisted after the January 17 Conference)


Issue(s): (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision. CVSG: 05/27/2014.

(relisted after the January 17 Conference)


Issue(s): Whether the Michigan Court of Appeals’ prejudice ruling under Strickland v. Washington rested on “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief. Metrish v. Lancaster (quoting Harrington v. Richter).

 (relisted after the January 17 Conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 23, 2014, 12:37 PM),