on Apr 7, 2017 at 3:30 pm
John Elwood reviews Monday’s (suspected) relists.
According to extensive focus-group testing, the words people most closely associate with Relist Watch are “dull” and “rote.” Which tickles us no end, because it means that we’re capturing exactly the market segment that, years ago, we paid a group of high-dollar consultants to help us corner. We’ve been pursuing this group for more than six years now; indeed, we began was so long ago that our first post hyphenated “Re-list,” as though it were authored by The Onion’s legendarily hyphen-crazed supercentenarian publisher emeritus T. Herman Zweibel.
As hard as it is to believe, during that small eternity, we’ve never really had to contend with the addition of a new justice. With the exception of one of our very oldest proto-posts on the pre-Washington Post Volokh Conspiracy, posted between Elena Kagan’s nomination and confirmation (and which was actually drafted in cuneiform – let me tell you, hyperlinks were a bear in that format), Relist Watch has never known a different group of justices.
So today’s installment is a particular treat for us, because it collects together the very first group of relisted cases that Justice-designate Neil Gorsuch (aka “his Imminence”) will consider during his very first conference – that is, when he isn’t busy answering the door. And because the Supreme Court overwhelmingly grants only relisted cases, these are likely to be the first grant candidates our soon-to-be justice will ever cast a vote on.
Mind you, the Supreme Court has not yet actually relisted any cases – meaning that the dockets do not yet reflect whether any cases from the March 31 conference have been distributed for the April 13 conference. Until that happens, we’re just speculating about which of the unresolved cases from the March 31 conference have been relisted. But based on our review, there appear to be no new relists this week. There is one redistricting case that the court hasn’t acted on, North Carolina v. Covington, 16-1023. On the docket, it looks just like a relist. But we’re handicapping that as a hold for another redistricting case out of the same state, McCrory v. Harris, 15-1262 (which eventually will be recaptioned as Cooper v. Harris because of a substituted official).
We should find out soon – maybe not after the very next conference (he will have a lot on his plate, after all), but soon – what our soon-to-be justice thinks about each of our returning relists. The most closely watched of our returning relists is the five-times relisted potential blockbuster Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, involving a cake decorator who refused on religious grounds to make a cake for a same-sex wedding. If, say, a justice is working on an opinion dissenting from denial of certiorari that two of his colleagues will sign, either they will finally produce their opinion or Gorsuch will furnish the necessary fourth vote to grant. We will likewise get some idea what Gorsuch thinks of the rest of this week’s returning relists, which all involve allegations of excessive police force (Salazar-Limon v. City of Houston, 16-515 and Needham v. Lewis, 16-881), or unnecessarily prolonged police detention (Needham v. Lewis, 16-881).
We expect the next order list on April 17. After that, our speculation about what is going on with these cases will be a little less speculative. I can hardly wait. Can you?
Thanks to Bryan U. Gividen for compiling the cases in this post, and to Evan Young for the “Imminence” joke.
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, February 24, March 3, March 17 and March 24 conferences, and probably after the March 31 conference)
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 clause of the First Amendment.
(relisted after the February 24, March 3, March 17 and March 24 conferences, and probably after the March 31 conference)
Needham v. Lewis
Issues: 1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.
(relisted after the March 17 and March 24 conferences, and probably after the March 31 conference)
Lewis v. Vasquez
Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit, in a divided 2-1 decision, incorrectly narrowed qualified immunity and failed to faithfully apply the Supreme Court’s precedents when it held that officers clearly lacked reasonable suspicion for the brief detention of a driver after a valid traffic stop until a drug detection dog arrived and alerted to the driver’s car; and (2) whether the 10th Circuit erred by doing precisely what the Supreme Court instructed lower courts not to do in United States v. Arvizu, which was to use a divide-and-conquer approach to reasonable suspicion and proceed to dismiss individual factors as innocuous in isolation rather than consider all factors collectively, i.e., the totality of the circumstances.
(relisted after the March 24 conference, and probably after the March 31 conference)