John Elwood reviews Monday’s relisted cases.

Brace yourself.  The Court’s out for the better part of the next month, probably to give the Justices time to focus on their other professional duties.  While it will be nice to have a breather, we have to take care that, with all the time spent cooped up indoors, we don’t let mid-winter cabin fever get the better of us.

We begin, as ever, with last week’s Offerings.  Promising news for the petitioner in Alabama Department of Revenue v. CSX Transportation, Inc., 13-553, which concerns a general sale-and-use tax that exempts railroads’ competitors but not railroads:  The Court called for the views of the Solicitor General, increasing 46-fold the odds that the Court will take up this case yet again.  But the news was not so good for last week’s other tax-discrimination petition, McLane Southern, Inc. v. Bridges, 13-657, which asked whether the structure of a Louisiana excise tax on smokeless tobacco unconstitutionally favored in-state distributors to out-of-state ones; after savoring it for a week, the Justices expelled it into that great cert.-denial spittoon in the sky.  It was likewise bad news for the state-on-top habeas petition in Hoffner v. Walker, 13-603, which alleged that the Sixth Circuit failed to give Michigan courts proper deference under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”); although Hoffner didn’t score the big deal, she at least walked away with the parting gift of having Justices Scalia and Alito say that they would’ve granted the petition.

Five of last week’s relists are back for another go-’round.  Topping that list is Ryan v. Hurles, 12-1472, which, at a staggering twelve relists, has now had more sequels than Police Academy and Scary Movie combined.  As even the most casual readers can now recite from memory, the case asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  People who were born before ads could be skipped will be thinking of (various) lonely repairmen, because the smelly washing machine cases are back: 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.  Capital-case Batson challenge Williams v. California, 13-494, is back again, evidently to give the Justices a chance to review the newly arrived record.

Now on to the fresh stuff.  The docket tends to fall behind when the Court’s not conferencing weekly, so it’s difficult to say for certain what’s a relist and what’s a hold.  But we have what appears to be a first-time relist in The Falls Church v. The Protestant Episcopal Church in the United States of America, 13-449, the latest in a series of disputes between Protestant denominations and individual congregations over church property in the wake of splits on doctrinal issues.  The Supreme Court of the Lovers’ State said that the Episcopalians got to keep the Falls Church—yes, that Falls Church—and the now-Anglican congregation seeks to revisit that.

Another case that appears to have been relisted is Robinson v. Drummond, 13-496, a state-on-top habeas petition coming to us from – who would have guessed? – the Sixth Circuit.  During his trial for the shooting death of a three-month-old baby, Mr. Drummond and his companions allegedly caused several disturbances, leading the trial court to close the courtroom temporarily, although local media were allowed to stay.   Ohio state courts rejected Drummond’s claim of a public-trial violation, but the court of appeals – per Judge Cole (the author of Hoffner) and Judge Griffin, with Judge Kethledge dissenting – granted the habeas petition and ordered a new trial.  The state claims that the Waller v. Georgia balancing test applies to total, and not (as here) partial, courtroom closures, and thus could not constitute clearly established law for purposes of AEDPA.  As Jimi Hendrix asked, what if six turned out to be nine?

Last up, from what is surely a less defendant-friendly jurisdiction, Hinton v. Alabama, 13-6440, seeks to revisit a capital conviction for two robbery-murders which turned on forensic evidence matching bullets in the defendant’s gun to those at the scene of the crimes.  Hinton claims he was denied his Sixth Amendment right to counsel because his appointed defense lawyer failed to obtain a rebuttal forensic expert.

We could say more (for example, there are a couple of Confrontation Clause cases out of Maryland the Court appears to be taking a look at) – but we won’t.  The Court will not be conferencing again until February 21, so you’ve got plenty of time to relax, pursue new recreational activities, or perhaps try to speed up global warming (just a suggestion).  Until then, try to keep busy enough to avoid contemplating the meaninglessness of your existence.  Let me recommend curling up with something good to read.

Thanks to Conor McEvily and Eric White for compiling and drafting this update; special thanks to Eric for his contributions lo these many years, and best wishes for his next gig.


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, January 17, and January 24 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, January 17, and January 24 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, January 17, and January 24 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, January 17, and January 24 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, January 17, and January 24 Conferences)


Issue(s): (1) Whether the First Amendment permits civil courts to retroactively impose a “trust” on church property based on church canons that were never embodied in any secular instrument of property ownership and did not comply with state law at the time of their adoption; (2) whether the Contracts Clause permits civil courts resolving church property disputes to apply changes to state statutory law retroactively.

(relisted after the January 24 Conference)


Issue(s): Whether the Sixth Circuit violated the Antiterrorism and Effective Death Penalty Act by holding that “some form” of Waller v. Georgia's specific four-part test was clearly established for partial courtroom closures and that a state court could unreasonably apply the modified test in the partial-closure context.

(relisted after the January 24 Conference)


Issue(s): (1) In a death penalty case where the State’s evidence of guilt rested entirely on a single piece of scientific evidence presented by state forensic experts, is the Sixth Amendment guarantee of effective assistance of counsel violated when appointed defense counsel fails to obtain a skilled, competent forensic expert without which no reliable conviction or adversarial testing of the State’s charges could be accomplished; and (2) When a state’s criminal case against an indigent turns entirely on scientific evidence, should this Court provide guidance to lower courts on what the Sixth Amendment right to counsel requires of an appointed lawyer where the defendant cannot be effectively defended or reliably convicted without the aid of a skilled forensic defense expert and post-conviction evidence from skilled experts establishes a reasonable probability that the outcome of the trial would have been different had such evidence been presented.

(relisted after the January 24 Conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 31, 2014, 10:11 AM),