In its Conference of January 22, 2016, the Court will consider petitions considering issues such as whether Congress has created a right to federally funded counsel in state capital post-conviction proceedings before completing federal habeas litigation, and whether the Employee Retirement Income Security Act requires a plan’s definition of “normal retirement age” to be based on the typical age at which the employer expects the plan’s participants to retire from working.

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.


Issue(s): (1) Whether the court below erred in holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional districting criteria; (2) whether the court below erred by concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts did not amount to racial predominance and trigger strict scrutiny; (3) whether the court below erred in disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts; (4) whether the court below erred in holding that racial goals must negate all other districting criteria in order for race to predominate; and (5) whether the court below erred in concluding that the General Assembly's predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest.


Issue(s): Whether the Employee Retirement Income Security Act requires that a plan’s definition of “normal retirement age” must be based on the typical age at which the employer expects the plan’s participants would retire from working.


Issue(s): Whether the district court can refuse to apply the Newman v. Piggie Park Enterprises, Inc. standard based on its value judgment that Congress would not have wanted Shelby County to recover its attorney’s fees.


Issue(s): Whether Congress has created a right to federally funded counsel in state capital post-conviction proceedings, in state court, prior to completing federal habeas litigation, notwithstanding this Court’s contrary decision in Harbison v. Bell.




Issue(s): (1) Whether the Louisiana courts erred in failing to find that the State’s failure to disclose exculpatory evidence violated its obligation under Brady v. Maryland and that this failure prejudiced the defense; and (2) whether the Louisiana courts erred in failing to find that petitioner’s sole attorney provided ineffective representation at the guilt phase of trial under Strickland v. Washington.


Issue(s): (1) Whether a stun gun is an “arm” within the meaning of the Second Amendment, and (2) whether Massachusetts’s blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.


Issue(s): Whether the Fourth Circuit erred in affirming the denial of relief on the inmate petitioner's complaint alleging that the prison discriminated against him in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act by refusing to permit him to organize a Jewish Bible study group.


Issue(s): (1) Whether the Ninth Circuit’s judgment in this case should be granted, vacated, and remanded in light of Horne v. Department of Agriculture, and (2) whether the California Unclaimed Property Law violates the Due Process Clause of the Fourteenth Amendment because it deprives owners of their property without affording constitutionally adequate notice.


Issue(s): (1) Whether the decision below conflicts with Fifth Third Bancorp v. Dudenhoeffer, as four members of the court of appeals concluded in dissenting from the denial of rehearing en banc; and (2) whether the Ninth Circuit erred in extending (sua sponte, and without the benefit of briefing) the presumption of indirect class-wide reliance that this Court approved for securities claims in Basic Inc. v. Levinson to respondents’ claims under the Employee Retirement Income Security Act.


Issue(s): Whether the Second Circuit erred in impeding, and discriminating against, foreign investment by treating foreign income taxes not as taxes, but as expenses, in determining entitlement to the foreign tax credit.


Issue(s): Whether the Idaho Supreme Court correctly concluded that Hughes v. Rowe and Christiansburg Garment Co. v. EEOC do not bind state courts because this Court “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.”


Issue(s): Whether the Full Faith and Credit Clause permits a court to deny recognition to an adoption judgment previously issued by a court from a sister state, based on the forum court’s de novo determination that the issuing court erred in applying its own state’s adoption law.


Issue(s): Whether, in all cases, the imposition of a sentence of death violates the Eighth Amendment’s prohibition against cruel and unusual punishments.


Issue(s): Whether the affirmance by the Supreme Court of the State of Florida of defendant’s conviction for first-degree murder and sentence of death was clearly erroneous and violative of the Constitution of the United States.


Issue(s): Whether Florida’s death penalty statute, which requires a judge rather than a jury to make findings of fact before the death penalty may be imposed, violated petitioner’s Sixth, Eighth, and Fourteenth Amendment rights as set forth in Ring v. Arizona and Apprendi v. New Jersey.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of January 22, SCOTUSblog (Jan. 16, 2016, 11:00 PM),