John Elwood reviews Monday’s relists

John G. Roberts’s in his center seat, all’s right with the world. The comforting and familiar rhythm of the Supreme Court’s Shadow Docket has returned, with one week’s relists turning ineluctably (scratch that—they’re plenty eluctable) into the next week’s grants, dissentals and summary reversals, er … affirmances. That’s right—this week, the court handed out a super-rare summary affirmance in Independence Institute v. Federal Election Commission, 16-743, which was part of the Court’s tiny docket of (typically election-related) mandatory appeals. And Monday’s one-word affirmance is precedential, although having less precedential value than a judgment in an argued case.

Every week brings thin gruel at Relist Watch, but this week’s is thinner than most, both because I’m supposed to be preparing for an argument, and because we have only one new relist. Leonard v. Texas, 16-122, raises due process, innocent-owner and standard-of-proof issues relating to forfeiture, in connection with a traffic stop during which police found over $200,000 in cash. The court has another forfeiture case on its docket, so it remains to be seen whether the justices are waiting to see whether they need to hold this case for that one, or whether something more momentous is afoot.

That’s all for this week! Tune in next week for more thinly-sourced speculations!

Wait! We have another relist? Oh — that old thing.

You’ll see why I forgot this case, because it’s so eminently forgettable. The world will little note nor long remember our second relist this week, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111. (Cakeshop? Isn’t that a British indie band?) This is one of those dull cases the Supreme Court is reduced to taking because they’re shorthanded and want to avoid controversial cases. Cakeshop involves the kind of abstruse question that only a handful of hardcore law nerds will care about: whether applying Colorado’s public accommodations law to compel a custom-cake decorator to make wedding cakes for same-sex couples in violation of sincerely held religious beliefs violates the free speech or free exercise clauses of the First Amendment. Hard to imagine too many people will get worked up about that. It’s too bad that by rescheduling the case and calling for the record earlier this year, the court pushed the case beyond the point where it could have been argued this term — otherwise, they could have knocked out this snoozer before Judge Gorsuch might have had to deal with it.

With that, we can all go back to enjoying another slow news week. Until next time!

Thanks to Bryan U. Gividen for compiling the cases in this post.


Returning Relists

Rippo v. Baker
Issue: Whether the trial judge’s failure to recuse himself from the petitioner’s capital trial violated the due process clause.

(relisted after the January 6, January 13, January 19, February 17 and February 24 conferences)


Baston v. United States
Issue: Whether 18 U.S.C. § 1596(a)(2) – which expressly establishes extraterritorial jurisdiction over sex trafficking by force, fraud or coercion, in violation of 18 U.S.C. § 1591 – is a valid exercise of Congress’s power under the foreign commerce clause.

(relisted after the January 13, January 19, February 17 and February 24 conferences)


Perez v. Florida
Issues: (1) Whether a special jury instruction as to Section 790.162, Florida Statutes, that an accused may be convicted of that offense with the “stated intent” to do bodily harm to any person or damage to the property of any person, amounts to an unconstitutional diminishment of the required criminal mens rea or scienter under the United States Supreme Court’s decision in Elonis v. United States; and (2) whether, under Elonis, Section 790.162, Florida Statutes, contains the necessary criminal element of mens rea or guilty knowledge instead of a mental state of mere negligence.

(relisted after the January 19, February 17 and February 24 conferences)


Salazar-Limon v. City of Houston
Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did. 

(relisted after the February 17 and February 24 conferences)


New Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

(relisted after the February 24 conference)

Leonard v. Texas
Issues: (1) Whether the hybrid nature of forfeiture proceedings supports the adoption of a clear and convincing standard of proof; (2) whether the Court of Appeals for the Ninth District of Texas at Beaumont’s rejection of the petitioner’s Eighth Amendment assertion violates due process; (3) whether the adjudicating and prosecuting tribunals’ direct pecuniary interests in the outcome of forfeiture proceedings infringe on the neutrality requirement of due process and create a culture of inherent conflict of interest; and (4) whether the Texas Code of Criminal Procedure, Title 1, Chapter 59, as applied to this line of cases, is impermissibly vague in enumerating innocent-owner expectations.

(relisted after the February 24 conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 2, 2017, 4:37 PM),