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Relist Watch

John Elwood reviews Monday’s relisted cases.

With the Iowa caucuses just days away, you’re probably wondering if Relist Watch is endorsing a primary candidate. And having surveyed the field and studied the candidates’ positions on the issues in detail, our answer is: What’s a caucus? Sounds NSFW. But really, you should know us better than that. If we wanted to talk about something shallow and devoid of substance, we would . . . well, come to think of it, that’s what we do every week. So let’s turn to that now.

Regular readers know we are a positive bunch – so positive that we have been known to deploy exclamation points for no apparent reason! On the positive side of this week’s ledger is a pair of two-time relists that achieved the efficient petitioner’s dream: summary reversal. Amgen Inc. v. Harris, 15-278, addressed whether the “fraud on the market” theory developed for securities class actions applies in the context of the Employee Retirement Income Security Act of 1974 (“ERISA”). During the case’s previous trip to One First Street, the Court decided to GVR (“grant, vacate, and remand,” if you’re not into the whole brevity thing) for consideration in light of Fifth Third Bancorp v. Dudenhoeffer, which clarified the standard for pleading that an ERISA plan trustee had violated the duty of prudence. This time around, Amgen persuaded the Supremes that that esteemed court of appeals had misapplied Fifth Third, and in just three-and-a-half pages, the Court held that the complaint did not plead “sufficient facts and allegations to state a claim for breach of the duty of prudence.” James v. City of Boise, 15-493, challenged the Idaho Supreme Court’s, um, idiosyncratic view that when the Supreme Court construes federal law, it “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.” In just one-and-a-half pages (more than one-tenth of which consisted of a single quote from the Court’s 1816 decision in Martin v. Hunter’s Lessee) the Court clarified that “[t]he Idaho Supreme Court, like any other state or federal court, is bound by this Court’s interpretation of federal law.” Some have speculated that this case is a shot across the bow of the Alabama Supreme Court. The implications of James will become clearer in the future, once we know what has actually happened.

On the negative side of the ledger are two relisted capital cases in which the Court denied cert. Fletcher v. Florida, 15-6075, and Smith v. Florida, 15-6430, both brought constitutional challenges to Florida’s death penalty statute which – until the Court declared it unconstitutional two weeks ago in Hurst v. Florida – relegated the jury to an advisory role while allowing the judge to make factual findings to establish death eligibility and impose punishment. One would expect the Court to liberally GVR after a case like Hurst, but the Court evidently was persuaded by the state’s arguments that the Hurst rule made no difference in either Timothy Fletcher or Delmer Smith’s cases. The Court thus shut the gate on them — at least at the moment.

The rest of last week’s party of five remains in reruns. At least, that’s what we think; the next Conference isn’t until February 19, so the Court’s docket is characteristically moving about as fast as side-street traffic after last weekend’s “snowlocaust.”® So take what follows with a grain of salt. Caetano v. Massachusetts, 14-10078 (seventh relist, apparently) asks whether a stun gun is an “arm” within the meaning of the Second Amendment; Wearry v. Cain, 14-10008 (seventh) asks questions about Brady and ineffective assistance of counsel; Taylor v. Yee, 15-169 (seventh) addresses whether California’s regime for unclaimed property is a “taking” for Takings Clause purposes; Ben-Levi v. Brown, 14-10186 (fourth relist, apparently) involves a Jewish prisoner denied permission to meet and pray with others because prison officials believed there were an insufficient number of people for organized prayer under their understanding of Judaism. One would sort of have to think that the odds favor the release of opinions in at least some of these serial relists when the Court returns on February 22.

Finally, the Court has called for the record in one-time relist V.L. v. E.L., 15-648, meaning that the Supremes are taking a very close look at the case. This case involves an Alabama woman who won adoption of her same-sex partner’s three kids in Georgia, only to have her home state’s supreme court hold that the Georgia courts had erred in applying its own state adoption law. One thing’s clear about this case: even if the Court grants cert. in the case, it won’t contribute to a “blockbuster” OT2015 because it would be argued next fall.

Finally, the main event: the Court apparently relisted in two new cases this week, both of which implicate interesting First Amendment issues, and both of which will leave close watchers of the Court’s docket with a sense of déjà vu.

Doe v. Christie, 15-195, stems from New Jersey’s ban on so-called “gay conversion therapy.” The Garden State prohibits any licensed mental health professional from providing counseling to a minor to “change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions towards a person of the same gender,” even when the client desires such counseling. Petitioner John Doe, a minor, by and through his parents Jack and Jane Doe, seeks “sexual orientation change efforts” (“SOCE”) counseling to treat his “unwanted same-sex attractions.” Jack and Jane, also petitioning in their own right, “seek to direct the upbringing and education of their son in accordance with the teachings of their faith, and to aid John Doe in conforming his identity to his true concept of self and align his attractions with his religious beliefs.” The petition alleges that John’s previous SOCE counseling in another state “reduce[d] his anxiety, eliminate[d] his depression, and overc[a]me his daily thoughts of suicide,” but New Jersey’s ban prevents him from receiving beneficial “talk therapy” because of the state’s “hostility toward the content and viewpoint espoused in such counseling.” After unsuccessfully challenging the ban in federal district and appellate courts, the Does’ petition asks: “(1) [w]hether the communication, discussion, and information provided by licensed mental health counselors or doctors during counseling or other professional services with their clients or patients constitutes speech protected by the First Amendment;” (2) whether the New Jersey ban is subject to strict scrutiny because it discriminates on the basis of viewpoint by permitting “mental health professionals and doctors to provide counseling concerning the subject of same-sex attractions, behaviors, or identity but only if such counseling does not include the content and viewpoint that a minor may reduce or eliminate his unwanted same-sex attractions”; and (3) whether the law violates “the fundamental right of parents to direct the upbringing and education of the children.” The Court has denied review of petitions by the same counsel challenging the New Jersey ban and a similar California law in King v. Christie and Pickup v. Brown/Welch v. Brown, but despite a dissent from denial of rehearing en banc by some influential judges (Diarmuid O’Scannlain, Carlos Bea, and Sandra Ikuta), the issue has never before garnered a relist. Tune in next month to see if it has this time!

This week’s other new (apparent) relist, American Freedom Defense Initiative v. King County, 15-584, include petitioners familiar to readers of our last Christmas spectacular, Robert Spencer and Pam Geller (no relation to Josie “Grossie” Geller). All three petitioners – and the issue – will be familiar to readers of this Term’s Christmas spectacular, which discussed the recently denied one-time relist American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority. The two cases present substantially similar issues. After King County accepted the State Department’s “Faces of Global Terrorism” ad in 2013 – depicting the faces and names of wanted global terrorists on county buses – the department withdrew the ad in the face of complaints that it demeaned Muslims and people of color. AFDI picked up where the State Department left off, submitting almost the exact same ad to the county, but adding a reference to “these jihadis” (a “political-ideological assessment that the majority of the FBI’s most wanted terrorists are ‘jihadis,’” AFDI says). The county rejected the ad, saying it violated transit advertising policy prohibitions on ads that were “false or misleading,” “demeaning or disparaging,” or “harmful or disruptive to [the] transit system.” The district court denied petitioners’ request for a preliminary injunction and the Ninth Circuit affirmed, holding transit advertising space was a nonpublic forum and that the restriction of petitioners’ speech as false or misleading was reasonable and viewpoint neutral. On cert., petitioners ask: “(1) [w]hether King County created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same subject matter as petitioners’ anti-terrorism ad, and thus violated the First Amendment by rejecting Petitioners’ ad based on its message; (2) . . . whether King County’s rejection of petitioners’ advertisement based on a claim that this public-issue ad was false or misleading violates the First Amendment; and (3) whether petitioners must demonstrate that there are no alternative ways to express their public-issue message in order for the court to find irreparable harm based on King County’s rejection of their ad.”

We also have a couple of rescheduled cases (including one rescheduled three times already), but given the Court’s general pattern of not granting in rescheduled cases until they have first been relisted, we won’t burn (y)our billable time on that — yet.

And with that, we will return you to the regularly scheduled winter of our discontent, made glorious summer by the prospect of not having another Relist Watch for nearly a month. Check back in with us mid-February when the Court will issue orders, opinions, and belated Valentine’s Day cards. Until next time!

Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.


[page]14-10008[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, and January 22 Conferences)


[page]14-10078[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, and January 22 Conferences)


[page]15-169[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, and January 22 Conferences)


[page]14-10186[/page] (relisted after the December 11, January 8, January 15, and January 22 Conferences)


[page]15-648[/page] (relisted after the January 15 Conference)


[page]15-195[/page] (relisted after the January 22 Conference)


[page]15-584[/page] (relisted after the January 22 Conference)


Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 29, 2016, 4:49 PM),