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Relist Watch

John Elwood reviews Monday’s relisted cases.

The calendar says we still have ten days to go, but it already feels like spring here in Washington! You know: “Spring. Rejuvenation. Rebirth. Everything’s blooming. All that crap.” But not to worry, your diligent and heliophobic Relist trolls remain at their Varidesks scouring the interwebs in a caffeine-fueled quest for stupid hyperlinks. But be forewarned: Since the Court has yet to update the dockets, we had to fire up our Ouija board to identify new relists (tea leaves, after all, are so . . . February).

We always begin with the winners, so in the spirit of the time, a dose of braggadocio: For once, we were right! As predicted, after eight relists, we bid a weary farewell to capital case Wearry v. Cain, 14-10008, which the Court summarily reversed in a per curiam opinion after finding multiple Brady violations, including that the prosecution failed to disclose that the state’s jailhouse witness had said he wanted to “make sure [Michael Wearry] gets the needle cause he jacked over me.”

We normally spare you mention of when the Court grants, vacates, and remands (“GVRs”) in light of recently decided cases, but GVRs warrant a brief mention this week. As forecast, a tangle of last week’s relists were GVR’d in light of Montgomery v. Louisiana, which held that 2012’s Miller v. Alabama (prohibiting mandatory sentences of life without parole for juveniles) applies retroactively to cases on collateral review. Because nothing drives home a point like repeating it twenty times, Justice Clarence Thomas, joined by Justice Samuel Alito, concurred with the GVRs but cautioned lower courts that “the Court’s disposition[s] of [these] petition[s] do[] not reflect any view regarding petitioner[s’] entitlement to relief.” This week, a slew of additional relists address the same Montgomery issue, so we may be seeing more GVRs (and perhaps more caveats) on the Court’s next order day (March 21).

Another of last week’s relists not only was granted, but also made the real world news for you surface-dwellers who think the “shadow docket” is a video game. Three-time relist V.L. v. E.L., 15-648, was reversed in a unanimous per curiam opinion, which held that the Alabama Supreme Court erred in refusing to grant full faith and credit to a Georgia court’s judgment making a woman the legal parent of the children she had raised with her same-sex partner. Law nerds (that means both of our readers) take note: lost among all the headlines was the fact that the opinion contains great language about not construing ambiguous language to be jurisdictional. The Court’s long-running war to clarify the line between jurisdictional and non-jurisdictional statutes continues.

The Court’s grantless streak since Justice Antonin Scalia’s death continues, and we join you in wondering how much to make of that pattern. Turning to the losers, the Court denied cert. to two-time relist American Freedom Defense Initiative v. King County, 15-584, but petitioners got the consolation prize of Thomas penning a dissent from denial, joined by Alito. They would have granted cert. to resolve a split about the degree to which governments can control the speech displayed on limited (or perhaps “designated”) public forums, in this case a bus advertisement featuring the faces of wanted terrorists and labelling them “jihadis.” Twice-relisted Kansas v. Dull, 15-276, also met its end, but this one was unheralded by dissent. It was more than just another Miller v. Alabama case, and raised the question of whether the Kansas Supreme Court erred when it held that Miller and Graham v. Florida barred lifetime post-release supervision of a person sentenced as a juvenile.

And with that, it’s Ouija time! Starting with existing relists: Spirits! Give us a clue! Pointer goes to . . . K? Maybe the spirits are hooked on phonics. They probably mean Caetano v. Massachusetts, 14-10078, which is probably on its ninth relist, and if so, surely an opinion of some sort is on the way. If we’re going to be wrong, we might as well be spectacularly, flagrantly, not-even-close wrong: it will probably come in the form of a dissent from denial and probably will involve Thomas and/or Alito. This case asks whether a stun gun is an “arm” under the Second Amendment.

Next: Spirits! Give us a sign! B?!?   That is plainly a reference to “breathe,” which can only mean the Clean Air Act (“CAA”) case Ohio v. Sierra Club, 15-684. Last week we fell victim to the trap of making easy jokes about the incomprehensibility of the CAA, but for whatever it says about how twenty-five years of practicing law have reshaped my brain, the case is actually fairly straightforward. The case concerns the Environmental Protection Agency’s decision to approve Cincinnati’s plan to maintain its status of “attainment” of CAA air-quality standards. Ohio argues in its petition that the Sixth Circuit erred in reversing the EPA’s approval of Cincinnati’s attainment plan, and that the Sixth Circuit was wrong to conclude that a plan had to include reasonable measures not necessary for maintaining attainment. The government agrees that the Sixth Circuit erred, but opposes cert. because it does not believe the case is important enough. That happens more than you’d think.

Moving on from sins of emission, the spirits are giving us an “A.” Well, that, ahem, must mean “Aitch,” which means its time to talk about the Court’s seemingly perpetual habeas docket. Woods v. Etherton, 15-723, is probably on its second relist. A state-on-top habeas from the Sixth Circuit, this case raises the familiar question whether the Sixth Circuit was insufficiently deferential to the state court when it decided that a criminal defendant’s counsel was ineffective because he failed to raise a Confrontation Clause issue. Another state-on-top habeas petition and likely second relist from the Sixth Circuit is Cook v. Barton, 15-580, which involves a tricky issue of determining whether a state court ruled on a procedural or substantive basis and the types of review applicable to each. A couple of simpletons tried to explain it here.

Spirits! Are you still there?   They say . . . “E”?!? Embarrassing? “Enough already?” Probably means we should move on to new business. The big new relist this week is Samsung Electronics Co. v. Apple, 15-777, which we’re guessing is being closely watched by the IP crowd. Plus the briefs have pictures. And we love picture books. The case concerns design patents and the measure of damages for their infringement. Apple claimed that Samsung copied the design of the face of Apple’s phones, and also copied the aesthetic of its colorful grid of icons on the screen. The jury found Samsung infringed Apple’s design patent, and awarded Apple all of Samsung’s profits, as well as a comparable award for infringement of Apple’s trade dress. Samsung argues that (1) when a design patent includes unprotected non-ornamental features, a district court should be required to limit the patent to its protected ornamental scope; and (2) when a design patent is applied only to a component of a product, an award of the infringer’s profits should be limited to those profits attributable to the component. Now we’ll put the phone down.

And lastly, our hands are drawn to “D.” An obvious reference to “Dude!!!!” We don’t normally pay much attention to the Court’s “original jurisdiction” docket, involving the relatively rare subset of cases over which the Supreme Court has original (rather than appellate or certiorari) jurisdiction, because those cases are so rare. Also, we’re lazy. But eventually, events will finally become obvious even to us. Nebraska and Oklahoma v. Colorado, 22-O-144, has now been relisted (probably) three times since briefing was completed. Nebraska and Oklahoma have filed a motion for leave to file a bill of complaint against Colorado alleging that the commercial aspects of its legalization of recreational marijuana use have facilitated the transport of the drug (and crime) into their states. They argue that they have a right to have federal drug laws enforced under the Supremacy Clause. The Court said to the Solicitor General, “Dude!” He got the hint and filed an amicus brief expressing the views of the United States. He contends that the two states have not shown that Colorado caused them a direct injury analogous to a casus belli were the states sovereign (quiet there, Texas). Now the Justices are left to decide how to proceed. Dude! This is hard!

With that, it is time to retire the lame Ouija gimmick. Only one more case left to point out. As if to validate our general policy of skipping rescheduled cases, the Court denied cert. in Apple, Inc. v. United States, 15-565, the antitrust case about whether Apple engaged in unlawful conduct in its efforts to coordinate with booksellers against Amazon. Apple will have to pin its hopes for Supreme Court glory on the Samsung case.

With that, we take our rest, knowing that you have stared out your window at the beautiful weather long enough. Be free. When we return in two weeks, it will officially be spring. Until next time!

Thanks to Bryan U. Gividen for compiling and Ralph C. Mayrell for drafting this update.


[page]14-10078[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, January 22, February 26, and March 4 Conferences)


[page]15-580[/page] (relisted after the February 26 and March 4 Conferences)


[page]15-684[/page] (relisted after the February 26 and March 4 Conferences)


[page]15-723[/page] (relisted after the February 26 and March 4 Conferences)


[page]15-777[/page] (relisted after March 4 Conference)


[page]22O144[/page] (relisted after January 22, February 19, and March 4 Conferences)


[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Samsung Electronics Co. v. Apple. The author of this post, however, is not affiliated with the firm.]

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 11, 2016, 1:02 PM),