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Relist Watch

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.


(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)


(relisted after the January 10, January 17, and January 24 Conferences)


(relisted after the January 10, January 17, and January 24 Conferences)


(relisted after the January 10, January 17, and January 24 Conferences)


(relisted after the January 10, January 17, and January 24 Conferences)


(relisted after the January 24 Conference)


(relisted after the January 24 Conference)


(relisted after the January 24 Conference)

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