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

In past years, we’ve commemorated Derby Week with a julep-fueled effort to outwork ourselves by fitting as many ridiculous names as possible into a post. It’s not our destiny to have such a dazzling gem this year; though we have mor spirit than ever, the creator of this feature has les time; I’m no exaggerator when I say that all my time must be devoted to argument prep, and I don’t have a whit more to spare. While I’ve enjoyed my break, happily, this should be the last of these short-form posts. My busy period is ending, and Tom’s ready for the regular Relist Watch to begin again. That means that when the Court returns with new orders on May 16 (perhaps with some opinions from my man Sam?), the fellowship of our readers will briefly break out the cherry wine to celebrate the return of cat videos and strained attempts at humor about sudden breaking news – swiftly followed by the sinking feeling that Relist Watch was never that funny.   With that cheery introduction, here we go . . .


Was relisted; cert. denied over dissent


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)


Was relisted; cert. granted in cases with facts press understandably finds humorous


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)



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)


Was relisted; likely held (same issue as SCA Hygiene Products Aktiebolag v. First Quality Baby Products)


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)


Was relisted; no action taken yet – likely relisted again (but issue uncertain because the Court’s dockets have not been updated)


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; likely relisted after Apr. 29 Conference)



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; likely relisted after Apr. 29 Conference)


Apparent new relist


Issue(s): (1) Whether Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. should be overruled; and (2) whether, in affording deference to an agency’s interpretation of its own regulation that conflicts with the governing statute, regulations adopted through rulemaking, and decades of prior agency guidance, the Seventh Circuit’s decision conflicts with this Court’s decisions in Auer and Christopher v. SmithKline Beecham Corp.

(rescheduled after Apr. 15 and 22 Conferences; likely relisted after Apr. 29 Conference)


Serial relists raising Montgomery v. Louisiana issues that apparently 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 before the Apr. 29 Conference, still with no new Conference date)

[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.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 6, 2016, 8:20 AM),