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Petitions to watch | Conference of May 21

At its Conference on May 21, 2015, the Court will consider petitions seeking review of issues such as the constitutionality of the University of Texas at Austin’s consideration of race in its undergraduate admissions process, pretrial restraint of a criminal defendant’s untainted assets under the Fifth and Sixth Amendments, and the constitutionality of a Mississippi law requiring physicians who perform abortions to have admitting privileges at a local hospital.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Currier v. Jackson Women’s Health Organization


Issue: (1) Whether the Due Process Clause of the Fourteenth Amendment requires Mississippi to exempt physicians at the State’s only abortion clinic from complying with a medically legitimate health and safety regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether Mississippi House Bill 1390, which requires that abortion physicians have admitting privileges at a local hospital to handle complications that require emergency hospitalization, imposes an undue burden under Planned Parenthood v. Casey regardless of the geographical availability of abortion services in adjoining states in light of the equal protection principle articulated in Missouri ex rel. Gaines v. Canada.

Shapiro v. Mack


Issue: Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

Murphy v. Texas


Issue: (1) Whether a capital defendant’s intellectual function should be assessed at the time of the crime and trial, as Atkins v. Virginia instructs and as multiple state and federal courts have held, or at some indeterminate later time, as Texas, Alabama, Florida, and Oklahoma have held; and (2) whether a state court’s reliance on nondiagnostic criteria and lay observation violates this Court’s pronouncements in Atkins and Hall v. Florida that any determination of intellectual disability must be made pursuant to clinical standards.

Shadadpuri v. United States


Issue: Whether the Federal Circuit en banc misconstrued 19 U.S.C. § 1592(a)(1)(A) by holding a shareholder, officer, and employee of the corporate importer of record jointly and severally liable for gross negligence penalties under the court’s theory that he “introduce[ed]” the goods, where the corporate importer of record had “entered” the goods with Customs, and where the government disavowed seeking liability against petitioner as either an aider or abettor under 19 U.S.C. § 1592(a)(1)(B) or by piercing the veil of the corporate importer, and had never advanced the court’s theory.

Fisher v. University of Texas at Austin


Issue: Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

Cohen v. Nvidia Corp.


Issue: Whether Item 303 of Regulation S-K forms the basis for a duty to disclose otherwise material information for purposes of an omission actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 as the Second Circuit recently held in direct conflict with the Ninth Circuit’s holding in this case.

Pharmaceutical Research and Manufacturers of America v. County of Alameda


Issue: Whether the dormant Commerce Clause permits a local law that directly conscripts out-of-state manufacturers to enter the locality and to assume all costs and responsibility for collecting and disposing of unused medicines from local residents, for the avowed purpose of shifting the costs of this traditional government function from local taxpayers and consumers to foreign producers and consumers.


Hooks v. Langford


Issue: (1) Whether the Sixth Circuit properly applied the doubly deferential standard under federal due process and 28 U.S.C. § 2254 that governs review of a state court’s holding that jury instructions could not have reasonably misled the jury on state law; and (2) whether the Sixth Circuit properly found that any alleged error was harmful under Brecht v. Abrahamson solely because the jury could have convicted the petitioner as an aider and abettor, not as the principal offender.

Evenwel v. Abbott


Issue: Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.

Taylor v. Barkes


Issue: (1) Whether the Third Circuit erred in holding that 42 U.S.C. § 1983 authorizes the imposition of supervisory liability on state officials for a subordinate’s alleged constitutional violation; and (2) whether the Third Circuit erred in holding that there is a clearly established right under the Eighth Amendment to the “proper implementation of adequate suicide prevention protocols.”

County of Maricopa v. Lopez-Valenzuela


Issue: (1) Whether the Ninth Circuit erred in holding, contrary to this Court’s decision in Demore v. Kim, that under United States v. Salerno, a denial of bail is permissible “only” after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail such as Arizona’s Proposition 100 and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states (and perhaps even calling into question categorical bans on bail in capital cases that exist in an additional twenty-two states); (2) whether, when adopting a categorical ban on bail for illegal aliens charged with serious felonies, a state may rely on logical assumptions, testimonial evidence of front-line prosecutors, and other anecdotal evidence that is in conformity with the empirical evidence of heightened flight risk by those unlawfully present in this country contained in studies conducted elsewhere, similar to what this Court has approved in analogous contexts, see City of Renton v. Playtime Theaters, Inc., or whether the state must conduct its own empirical analysis that is both jurisdiction- and category-specific in order to meet the requirements of Due Process; and (3) whether the Ninth Circuit erred in holding that Proposition 100 was facially unconstitutional, contrary to Salerno‘s requirement that a statute is facially invalid only if “no set of circumstances exists under which the Act would be valid,” because among those categorically denied bail by Arizona’s Proposition, 100 are individuals charged with capital crimes, whom the Ninth Circuit recognized could categorically be denied bail.

Jackson v. City and County of San Francisco


Issue: Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia’s invalidated effort to do the same.

Manzano v. Indiana


Issue: Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).

Luis v. United States


Issue: Whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

Joyner v. Barnes


Issue: Whether the Fourth Circuit contravened 28 U.S.C. § 2254(d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied “clearly established” law when they held that third-party religious discussions with jurors did not concern “the matter[s] pending before the jury”?

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of May 21, SCOTUSblog (May. 21, 2015, 11:19 AM),