John Elwood (barely) reviews Monday’s relisted cases.

For a second week, my day job is inexplicably crowding out my efforts to bring the legal market to a screeching halt by inserting malicious hyperlinks into purportedly humorous SCOTUSblog posts. While not being the “Relist Watch guy” has precipitated something of an identity crisis, it has at least succeeded in increasing my productivity. And it has definitively answered those small-minded people who thought that Relist Watch really couldn’t get any worse.


Was relisted and repeatedly rescheduled; cert. denied over dissent


Issue(s): (1) Whether the Court should reconsider, and then overrule or modify, the portion of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City barring property owners from filing a federal takings claim in federal court until they exhaust state court remedies, when this rule results in numerous jurisdictional “anomalies” and has a “dramatic” negative impact on takings law under San Remo Hotel, L.P. v. City and County of San Francisco; and (2) whether, alternatively, federal courts can and should waive Williamson County’s state litigation requirement for prudential reasons when a federal takings claim is factually concrete without state procedures, as some circuit courts hold, or apply the requirement as a rigid jurisdictional barrier, as other circuits hold.

(relisted after the Apr. 1 and Apr. 15 Conferences)


Was relisted; cert. granted


Issue(s): Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.

(relisted after the Apr. 15 Conference)



Issue(s): Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.

(relisted after the Apr. 15 Conference)


Was relisted; relisted again


Issue(s): (1) Whether the Antiterrorism and Effective Death Penalty Act’s presumption that a state decision rejecting a claim is a ruling on the merits can be rebutted by looking through to an earlier state ruling which applied a procedural bar that, under state law, could not be the basis for the later decision; and (2) whether, if so, a change in state law reducing a prisoner’s ability to earn future good-time credits based on new or continuing prison misconduct violates the Ex Post Facto Clause as applied to a prisoner who committed his underlying crime before the change in law.

(relisted after the Apr. 1, Apr. 15, and Apr. 22 Conferences)



Issue(s): What is the appropriate test to determine when a feature of a useful article is protectable under section 101 of the Copyright Act.

(relisted after the Apr. 15 and Apr. 22 Conferences)


New relists


Issue(s): (1) Whether, for federal habeas purposes, California’s procedural rule generally barring review of claims that were available but not raised on direct appeal is an “adequate” state-law ground for rejection of a claim; and (2) whether, when a federal habeas petitioner argues that a state procedural default is not an “adequate” state-law ground for rejection of a claim, the burden of persuasion as to adequacy rests on the habeas petitioner (as in the Fifth Circuit) or on the state (as in the Ninth and Tenth Circuits).

(relisted after the Apr. 22 Conference)



Issue(s): Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

(relisted after the Apr. 22 Conference; record requested on Apr. 27)



Issue(s): Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.

(relisted after the Apr. 22 Conference)



Issue(s): Whether judges may use the equitable defense of laches to bar legal claims for damages that are timely under the express terms of the Patent Act.

(relisted after the Apr. 22 Conference)



Issue(s): (1) Whether decades-long delays in executions—caused primarily by state action, and which result in only a small number of randomly-selected defendants actually being put to death—constitute a violation of due process under the Fifth and Fourteenth Amendments, as well as cruel and unusual punishment under the Eighth Amendment; and (2) whether the trial court is bound to hold an evidentiary hearing before the evidence is presented to the jury—assuming that undependable eyewitness identification is admissible at all, after a colorable showing that eyewitness identification evidence is both tainted and otherwise unreliable in a penalty phase trial—in order to establish sufficient reliability to comport with the due process clauses of the Fifth and Fourteenth Amendments as well as the Eighth and Fourteenth Amendments requiring greater reliability in capital cases.

(relisted after the Apr. 22 Conference)


Serial relists raising Montgomery v. Louisiana issues that notched yet another relist

Johnson v. Manis, 15-1

Knotts v. Alabama, 15-6284

Adams v. Alabama, 15-6289

Flowers v. Alabama, 15-6306

Slaton v. Alabama, 15-6300

Barnes v. Alabama, 15-6904, 15-6905

Bonds v. Alabama, 15-6290


Rescheduled cases for which we make an exception to our normal rule about not discussing rescheduled cases

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case.

Issue(s): (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

(rescheduled ahead of the Apr. 29 Conference)


[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]


Thanks to Bryan U. Gividen for compiling the cases, and in the process, largely drafting this post. Our normal waste of time will return eventually.

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 29, 2016, 8:21 AM),