Breaking News

A Relist Carol

John Elwood reviews the latest relists, with the musical assistance of a retired elf. Not that one.

I’m dreaming of some slight relists
Not like the ones we used to know
Where petitions prevail and readers fail
To gripe that we used this song before

Our story begins late at night at the desk of a sour law clerk named Ebenezer Scotus. (And who could blame Ebenezer for being sour, having been given one of those rare names that have been forever spoiled by previous users?) No matter how deep and persistent the circuit split, no matter how important and recurring the issue, no matter how ideal the vehicle, Ebenezer’s pool-memo recommendation was always the same: “Humbug! Deny!” But that evening in his cold, dark apartment, Ebenezer was visited by the ghost of the #AppellateTwitter lawyer he’d worked with years earlier. At first, Ebenezer thought the vision was just the price of his ill-advised decision to add french fries to his late-night burrito. But then the ghost came closer: He was hideous, old, and withered, and was shackled and dragging reams of rejected cert petitions. The ghost warned that Ebenezer would suffer the same fate if he did not heed three spirits who would visit him.

The first relist
The law profs do say
Was Marbury’s commission
On the desk where it lay
On the desk where it lay, waiting its turn
Long before anyone felt the Bern
Relist, relist, relist, relist
How long have we been doing this? 

After unsettling dreams that he was trapped in what may be the most tired cliché in all literature, Ebenezer awoke moments before the arrival of the first spirit. The Ghost of Relists Past took Scotus on a journey back in time. Ebenezer watched the joy that met the grant of one-time relist Honeycutt v. United States, 16-142. And he delighted when, just days later, the court went on to grant review in TC Heartland v. Kraft Foods Group Brands, 16-341, Lee v. United States, 16-327, and companion cases Turner v. United States, 15-1503, and Overton v. United States, 15-1504. Ebenezer quibbled that those cases had not technically been relisted, but the ghost, who was a bit of a nut, cleared his throat in an embarrassed way and muttered something about how everyone knew that the court had done the usual vetting of a full relist in the five days between conference and grant. Ebenezer was surprised to find himself rejoicing at all the granted petitions, but the spirit noted that not all the news had been good: The court also had denied review to eight-time relist Sireci v. Florida, 16-5247 (over the dissent of Justice Stephen Breyer), five-time relist Stokes v. South Carolina, 15-9329, four-time relist Broom v. Ohio, 16-5580 (over the dissenting votes of Breyer and Justice Elena Kagan), and two-time relist Tyler v. Louisiana, 15-8114.

I don’t want a lot for Christmas
There is just one thing I need
I don’t care about the presents
Underneath the Christmas tree
I just want out of court
Want this judge to let me go
Make my wish come true
All I want for Christmas is [qualified imm]YOU[nity].

The following night, the Ghost of Relists Present arrived. The ghost took Ebenezer to One First Street. Ebenezer complained that his vision was cloudy, and the ghost explained that his difficulty seeing was to be expected because the court had not yet relisted the cases after the December 9 conference, and so the dockets remained unchanged. The ghost took Scotus to the homes of the police officers petitioning in this week’s two (likely) returning relists, which both involve qualified immunity – (probable) six-time relist District of Columbia v. Wesby, 15-1485, and (probable) five-time relist White v. Pauly, 16-67. Then the ghost showed Ebenezer the lonely houses of petitioners’ counsel, and Ebenezer wondered if the repeated relists meant the new year would bring summary reversal for those cases – or whether it would usher in another type of opinion altogether.

As the second spirit vanished, Ebenezer was approached by a looming presence, the Ghost of Relists Yet to Come. (For those who haven’t quite figured out the theme, these are the new relists). Ebenezer had taken enough AP English courses in high school to be thoroughly conversant in Dickens references, so this was the ghost he dreaded most of all. His trepidation deepened when he noticed that the papers in each of the three final relists bore the legend “Capital Case.” The first involved Thomas Arthur, who was sentenced to death by an Alabama judge after a non-unanimous advisory jury recommendation. Arthur argued, in Arthur v. Alabama, 16-595, that Alabama’s system was similar to the Florida one found unconstitutional in Hurst v. Florida. Ebenezer realized the court had only recently refused to stay the execution in a case that raised a similar issue.

Ebenezer then turned to a second petition from the same prisoner, Arthur v. Dunn, 16-602. That petition argued that Alabama’s method of execution by lethal injection was cruel and unusual. Under Glossip v. Gross, a prisoner challenging a method of execution must plead a known and available alternative method. The lower courts denied Arthur’s challenge, holding that he had failed to identify another execution method known and available under state statute that would cause less pain. Arthur’s petition argued that restricting alternative methods to ones available under existing statute allows states to avoid method-of-execution challenges by simply limiting or eliminating alternative methods. He also argued that the U.S. Court of Appeals for the 11th Circuit essentially required him to procure lethal injection drugs for the state to employ in his own execution and to produce medical evidence of an alternative protocol. Ebenezer realized that in early November, Chief Justice John Roberts had provided a “courtesy fifth” vote for a stay of execution that would allow the court to review the case. And he saw that the third petition was a case from Arkansas that raised the same issue, Johnson v. Kelley, 16-6496.

Ebenezer had seen enough. Relists are important, he realized, but mainly because they may become grants. And without the relist pipeline, many great cases would never be heard. With joy and love for relists alive in his heart again, Ebenezer Scotus returned to his office, where he spent a wonderful holiday working 12-hour days, joining the Relist Watch team and lawyers everywhere in gratitude that he would not be expected to get up from his computer and re-enter society. But Ebenezer emailed us and asked us to pass on to you, dear readers, his best wishes for a safe and happy holiday season.

Relist Navidad (repeat 3X)
Another año of relists ahead
Relist Navidad (repeat 3X)
Another año of relists ahead
We’ve had so much fun talking relists
We’ve had so much fun talking relists
We’ve had so much fun talking relists
We should do it again next year

We will be back to waste your time in 2017. Until next time!

Thanks to Bryan U. Gividen for compiling the cases in this post, and Dmitry Slavin for humming a few bars so we could pick the tune up.


Returning Relists


Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28, November 4, November 10, November 22 and December 2 conferences, and probably the December 9 conference)



Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

(relisted after the November 4, November 10, November 22 and December 2 conferences, and probably the December 9 conference)


New Relists


Issues: (1) Whether Alabama’s advisory jury death sentencing scheme, which is in all relevant aspects the same as the Florida scheme reviewed in Hurst v. Florida, violates the Sixth Amendment; (2) whether Hurstand the Sixth and Eighth Amendments require, at least, a unanimous jury recommendation for a sentence of death, as the Florida Supreme Court held on remand in Hurst; and (3) whether the U.S. Supreme Court’s decision in Hurst applies retroactively to the petitioner’s case, and the cases of other condemned inmates sentenced under unconstitutional capital sentencing laws, where the new rule announced in Hurst implicates the fundamental right to a fair trial and substantially enhances fact-finding procedures.

(probably relisted after the December 9 conference)



Issues: (1) Whether, to satisfy his Glossip v. Gross burden, a condemned prisoner is limited to selecting an alternative method of execution from those already permitted by state statute; (2) whether Glossip requires a prisoner proposing an alternative lethal injection drug to provide a specific willing supplier for the alternative drug; (3) whether, to meet his Glossip burden, a condemned prisoner is required to provide, through a medical expert, a detailed protocol for an alternative method of execution including “precise procedures, amounts, times and frequencies of implementation;” and (4) whether it is a violation of the 14th Amendment guarantee of equal protection for a state to arbitrarily deviate from its voluntarily adopted execution safeguards.

(probably relisted after the December 9 conference)



Issues: (1) Whether, in a means-of-execution suit, known and available alternatives are limited to those already provided in a statute an inmate is challenging; (2) whether an inmate pleads a known and available alternative by identifying an execution method—firing squad—that other states have used and that the state has admitted it can carry out; and (3) whether an inmate pleads a known and available alternative by identifying a lethal-injection drug and identifying vendors who currently sell it.

(probably relisted after the December 9 conference)

Recommended Citation: John Elwood, A Relist Carol, SCOTUSblog (Dec. 23, 2016, 12:44 PM),