John Elwood reviews Monday’s relisted cases.

The Supreme Court term that began Monday marks the sixth year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “Shadow Docket”; even before that, we detracted from the Internet’s exclusive focus on the Kardashians, hate speech, and porn with our intermittent musings on relisted cases. It’s been a fun ride, but we’re becoming increasingly aware that our profligate use of electrons cannot continue indefinitely. To put this feature on a more sustainable footing, we begin this term by making a new commitment to only using ethically-sourced nouns, organic local adjectives, and adverbs only when absolutely necessary. And also, doing full write-ups on fewer cases so that we can do, you know, paying work.

Last time we checked in, when the long summer loomed ahead as yet uncorrupted by the unremitting crappiness of 2016, the court was sitting on 17 relisted cases. Since then, the court’s done some housekeeping, granting cert in 10 of those cases (henceforth known as “the November sitting”), denying cert in four of them L (two with dissents), holding one, granting-vacating-and-remanding (“GVRing”) one, and, just for good measure, relisting one (more on which anon). Because America is all about the future, and we are lazy, we won’t bore you by reciting the details of something that happened so long ago.

Returning relists

We begin this week with the sole holdover from last term, which thus begins OT2016 as the new term’s relist king. Elmore v. Holbrook, 15-7848, has now earned its seventh relist. That number is sufficiently high for us to predict, with the confidence of those who have the administrative password necessary to go back and rewrite this post if it turns out to be wrong, that this case is overdue for an opinion of some kind. Elmore, a capital case, seeks resolution of two issues: (1) whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel’s post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. § 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice to the defendant from being shackled in front of the jurors.

New relists

On to the new business. There are 15 new relists. Consistent with our sustainability pledge, we’ve hand picked a batch of artisanal, locally-sourced, first-time relists to delight your failing senses. The rest of this week’s crop consists of, shall we say, the kind of non-blockbusters of the type that everyone and their mother (can you believe you get that kind of wordplay for free?) predicts will abound under an eight-member court. Those cases will be addressed a bit more summarily below in what might once have been called Economy Class, but now is called Relist Watch Select™.

Lets start with a sentimental favorite, Packingham v. North Carolina, 15-1194. In an effort to make North Carolina “one of the toughest states, if not the toughest state” in the country in dealing with those on its sex-offender registry, North Carolina enacted N.C. Gen. Stat. § 13-202.5, which makes it a felony for persons on the state’s registry to “access” any commercial website that: “facilitates the social introduction” of people for, among other things, “purposes of … information exchanges”; allows users to create “personal profiles” with a name or picture; and provides them with ways to “communicate with other users” – provided the site is “know[n]” not to restrict “member[ship]” to adults. Petitioner Lester Packingham, who pled guilty in 2002 to one count of taking indecent liberties with a minor, was arrested, prosecuted, and convicted for “accessing” in 2010 – specifically, for writing a post that said “God is Good” in response to having a traffic ticket dismissed. (As an aside, I would have lived a better life if I’d known God took care of those things.) On appeal, Packingham successfully argued that the provision was unconstitutional on its face and as applied to him. But the North Carolina Supreme Court, over a vigorous dissent, reversed, upholding Packingham’s conviction. Observing that the law does not require the state to prove that the accused had (or intended to have) contact with a minor, or that the accused accessed a website with any illicit or improper purpose, Packingham asks whether, “under th[e] Court’s First Amendment precedents, such a law is permissible.” The next sentence describes why the case is such a sentimental favorite. Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

These next relists show that commentators who were grumbling that the divided court was just going to take a bunch of patent cases were all dead wrong. No, that’s not it. It shows they were totally right! The petitioners in both MCM Portfolio LLC v. Hewlett-Packard Co., 15-1130, and Cooper v. Lee, 15-955, are patent owners questioning the constitutionality of a proceeding called inter partes review. Established in 2011, IPR is a new, adversarial, adjudicatory proceeding that allows third parties to challenge the validity of granted patents before a panel of administrative judges (the Patent Trial and Appeal Board) rather than an Article III court. The Federal Circuit rejected petitioners’ arguments that the IPR violates Article III (because it vests the judicial power outside the judicial branch) and the Seventh Amendment (because it permits the government to extinguish valuable and vested private property rights without a jury trial). MCM (supported by eight amicus briefs) seeks to challenge both of those holdings; Carl Cooper (supported by two amicus briefs) raises only the Article III issue. The issues are necessarily splitless, because the Federal Circuit has exclusive jurisdiction over PTAB cases, but it is obviously important to an enormous slice of the economy. Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioner in MCM.

There’s a tangle of five related relists, all of which present something of an interesting question (or at least, “interesting” by the low standards of people who voluntarily read into the seventh paragraph of Supreme Court blog posts). Building on its decision in Miller v. Alabama – in which the Court held that the Eighth Amendment forbids mandatory life-without-parole sentences for a juvenile homicide offenders – the court last term issued Montgomery v. Louisiana, holding that, when a judge has discretion to impose such a sentence under state law, the Eighth Amendment requires that judge to first find that the crime reflects “permanent incorrigibility” or “irreparable corruption.” The petitioners in each of the five relisted cases – Purcell v. Arizona, 15-8842; Tatum v. Arizona, 15-8850; Najar v. Arizona, 15-8878; Arias v. Arizona, 15-9044; and DeShaw v. Arizona, 15-9057 – were minors at the time they committed murder. And they were all were sentenced to life imprisonment without parole under schemes in which such sentences were not mandatory because, at the time, the state could (and in most of these cases, did) seek the death penalty. When the courts below reviewed each petitioner’s Miller-based challenge to his life-without-parole sentence, they upheld the sentences, relying on the reasons the sentencing judge gave for not imposing the death sentence. However, at the time of each lower court’s Miller ruling, the courts lacked the benefit of the as-yet-undecided Montgomery and its requirement of a finding of incorrigibility. On cert, the petitioners ask whether a sentencing judge’s exercise of discretion not to impose a death sentence is the functional equivalent of the affirmative findings required under Montgomery to impose a sentence of life without parole on a juvenile offender. Faithful readers will recall that Justices Samuel Alito and Sonia Sotomayor tangled over a similar issue last term in a what were ostensibly concurring opinions in the grant of several GVRs.

And now on to the luxurious splendor of Relist Watch Select™.



Issue(s): (1) Whether a court may abdicate to a state executive agency its duty under the supremacy clause to determine whether state law has been preempted; and (2) whether the privacy rule, which forbids the disclosure of a patient’s records without patient authorization, preempts West Virginia state law, which requires the disclosure of patient records without patient authorization.

(relisted after the September 26, 2016 conference)



Issue(s): Whether the court should grant certiorari to resolve the circuit split between the U.S. Court of Appeals for the 8th Circuit's decision in United States v. Carlson holding that the petitioner was not denied a fair trial based on the inferential United States v. Turcotte instruction allowing the jury to find the petitioner guilty beyond a reasonable doubt under both prongs of the two pronged test for conspiracy to distribute controlled substance analogues based upon proof beyond a reasonable doubt based solely on the second prong, and the 10th Circuit's decision in United States v. Makkar, where the court held that the Turcotte instruction does not allow a jury to find the first prong of the above test proven beyond a reasonable doubt based exclusively on proof beyond a reasonable doubt of the second prong of the test.

(relisted after the September 26, 2016 conference)



Issue(s): (1) Whether the respondent has Article III standing to challenge the Forest Service's failure to reinitiate Section 7 of the Endangered Species Act consultation on the Lynx Amendments, which were completed in 2007, after the Fish and Wildlife Service designated additional critical habitat for the lynx in 2009, when the respondent cannot identify any member who has or will suffer a concrete injury as a result; (2) whether the respondent's challenge to the Forest Service's programmatic amendments is ripe for review when the respondent failed to challenge any site-specific project authorized under the amended plan provisions; and (3) whether Section 7(a)(2) of the ESA requires the Forest Service to reinitiate consultation on a completed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.

(relisted after the September 26, 2016 conference)



Issue(s): Whether the Multistate Tax Compact, a multistate agreement that addresses significant aspects of the state taxation of multistate businesses, has the status of a contract that binds its signatory states.

(relisted after the September 26, 2016 conference)



Issue(s): (1) Whether a federal court of appeals may exercise jurisdiction when a notice of appeal does not identify correctly the order to be reviewed, but the briefs resolve any potential confusion; (2) whether a federal court of appeals may exercise jurisdiction when an error in the designation of the order to be reviewed neither prejudices nor misleads the appellee; and (3) whether the more lenient standard of Foman v. Davis or the more stringent standard of Torres v. Oakland Scavenger Co. determines if appellate jurisdiction is defeated by an error in the designation of the order to be reviewed.

(relisted after the September 26, 2016 conference)



Issue(s): Whether Oklahoma courts violate the Eighth Amendment and the court's holdings in Booth v. Maryland and Payne v. Tennessee when they consistently allow for the admission of victim impact testimony in capital sentencing trials that consists of family members' characterizations of the crime and family members' sentencing recommendations.

(relisted after the September 26, 2016 conference)



Issue(s): Whether a state court violates a petitioner's federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26, 2016 conference)


And with that, we’re done for another week. The court may need to issue grants tomorrow to fill up the rest of the January argument calendar; otherwise, we’ll be getting orders on Tuesday. Until then: Happy Columbus Day!

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

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 6, 2016, 4:18 PM),