John Elwood previews February’s likely relists.

We’re now in the middle of the Supreme Court’s nearly month-long midwinter hiatus between conferences. This means that the court hasn’t actually relisted the cases that it wishes to consider again after the January 18 conference, and probably won’t do so until closer to February 11. Still, we have a pretty good idea of which cases will be relisted. But before we head on to that, let’s bid farewell to the relisted cases that moved on to fairer climes as well as those that were frozen out.

It is always a guessing game which cases will be relisted before the court updates the dockets, but it looks like the court will newly relist 59 cases for the February 15 conference. Before you get too excited, it looks like 56 of them are Armed Career Criminal Act cases the court has been holding for Stokeling v. United States, decided January 15. The sheer volume of cases may have made the relists likely, so the justices and the clerks have the breathing room to figure out how to resolve each of the cases in light of that decision.

Just so you get an appreciation for how much work is going on up at the court – and exactly how many people are convicted under the Armed Career Criminal Act – here is a list of those cases: Klikno v. United States, 17-5018, Razz v. United States, 17-5239, Davis v. United States, 17-5543, Phelps v. United States, 17-5745, Conde v. United States, 17-5772, Williams v. United States, 17-6026, Everette v. United States, 17-6054, Jones v. United States, 17-6140, James v. United States, 17-6271, Middleton v. United States, 17-6276, Reeves v. United States, 17-6357, Rivera v. United States, 17-6374, Shotwell v. United States, 17-6540, Orr v. United States, 17-6577, Mays v. United States, 17-6664, Hardy v. United States, 17-6829, Pace v. United States, 17-7140, Wright v. United States, 17-6887, Baxter v. United States, 17-6991, Repress v. United States, 17-7391, Cottman v. United States, 17-7563, Garcia v. United States, 17-7716, Beverly v. United States, 17-7747, Jackson v. United States, 17-7762, Wright v. United States, 17-7952, Bannister v. United States, 17-8272, Wright v. United States, 17-8289, Franklin v. United States, 17-8401 (the government confessed error in this one), Casamayor v. United States, 17-8431, Robinett v. United States, 17-8544, Hall v. United States, 17-8663, King v. United States, 17-8676, Jackson v. United States, 17-8678, Dorvilus v. United States, 17-8739, Van Sach v. United States, 17-8740, Williams v. United States, 17-8745, DeShazior v. United States, 17-8766, Davis v. United States, 17-8860, Lewis v. United States, 17-8951, Lewis v. United States, 17-9097, Joyner v. United States, 17-9128, Godbee v. United States, 17-9151, Walker v. United States, 17-9353, Diemer v. United States, 17-9378, Shields v. United States, 17-9399, Garcia v. United States, 17-9469, Harris v. United States, 17-9589, Anderson v. United States, 18-5092, Serrano v. United States, 18-5288, Pettis v. United States, 18-5232, Smith v. United States, 18-5612, Swopes v. United States, 18-5838, Perez v. United States, 18-5940, Borrero v. United States, 18-6025, Lipscomb v. United States, 18-6177, and Browning v. United States, 18-6369. Although there might be surprises, I don’t expect any merits grants out of this group – it seems like cert will be denied in many or most cases and the court might grant, vacate and remand in some.

Still with us? Three (or possibly four) other cases have been relisted that present better odds for plenary review. In two, the court called for the views of the solicitor general, but took the unusual step of specifying a deadline (January 4) for the government’s amicus brief – perhaps so the court might be able to grant review in time to resolve the case this term. Both County of Maui, Hawaii v. Hawaii Wildlife Fund, 18-260, and Kinder Morgan Energy Partners, L.P. v. Upstate Forever, 18-268, involve the question whether a “discharge of a pollutant” under the Clean Water Act occurs when a pollutant is released from a point source, but not directly into the “navigable waters” that the act protects, and instead is transmitted to those waters through soil or groundwater. The government recommends the court take County of Maui and hold Kinder Morgan. But the government says that the Environmental Protection Agency “expects to take further action” that might include further guidance or rulemaking “within the next several weeks.” The government advises that the court should give the parties “the benefit of the EPA’s views before any brief on the merits is due.” That was probably enough to push these cases into February, safely to the point where even if granted, they’ll be argued next fall.

Chamberlin v. Hall, 18-6286, is an unusual case involving a female death-row prisoner, Lisa Jo Chamberlin. She argues that the state of Mississippi engaged in racially motivated jury strikes during her trial. These so-called Batson claims are so fact-intensive, and the stakes in capital cases are so high, that the court routinely needs to relist them to give them careful review. The justices have nearly a month to pore over the briefs to decide what to do; it’ll be interesting to see if the court takes the additional step of calling for the record, which would allow the justices to review the facts of the case in more detailed fashion.  But then again, this may also just be a hold for Flowers v. Mississippi, 17-9572, to be argued March 20; it also involves Batson.

One last case. It’s hard to tell, but the court may just be holding Johnson v. Oklahoma, 18-6098, for Carpenter v. Murphy, the case argued in November addressing whether the area of eastern Oklahoma that was once a Creek Nation Indian reservation remains so (meaning that the state of Oklahoma cannot assert criminal jurisdiction over members of the nation there). Johnson involves a similar question for the Seminole Nation. But hey, we’ve made a case page in case it is a relist and the court winds up granting cert.

That’s all for this week, and indeed, until mid-February. Hopefully, by the next time you read this, temperatures will be higher in D.C. than in Irkutsk and the court will have those 56 Stokeling relists sorted out. Thanks again to Tom Mitsch for compiling the relists.

 

New Relists

County of Maui, Hawaii v. Hawaii Wildlife Fund, 18-260

Issues: (1) Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater; and (2) whether the County of Maui had fair notice that a Clean Water Act permit was required for its underground injection control wells that operated without such a permit for nearly 40 years. CVSG: 01/03/2018.

(likely relisted after the January 18 conference)

 

Kinder Morgan Energy Partners, L.P. v. Upstate Forever, 18-268

Issues: (1) Whether the Clean Water Act’s permitting requirement is confined to discharges from a point source to navigable waters, or whether it also applies to discharges into soil or groundwater whenever there is a “direct hydrological connection” between the groundwater and nearby navigable waters; and (2) whether an “ongoing violation” of the Clean Water Act exists for purposes of the act’s citizen-suit provision when a point source has permanently ceased discharging pollutants, but some of the pollutants are still reaching navigable water through groundwater. CVSG: 01/03/2019.

(likely relisted after the January 18 conference)

 

Johnson v. Oklahoma, 18-6098

Issues:  (1) Whether a state has jurisdiction under the Major Crimes Act to prosecute an Indian offender for a crime committed within the historical boundaries of the Seminole Nation; and (2) whether petitioner’s jurisdictional claim is barred.

(possibly relisted after the January 18 conference)

 

Chamberlin v. Hall, 18-6286

Issues: (1) Whether a court reviewing a Batson claim may consider reasons distinguishing stricken jurors from those accepted by the prosecutor when the distinguishing factor was not cited in the trial court as the basis for the prosecutor’s decision; and (2) whether the evidence in the state-court record, including the prosecutor’s starkly disparate strike pattern, failure to conduct individual voir dire, and the comparative juror analysis showing the implausibility of the prosecutor’s proffered reasons for striking two African-American panelists, supported the federal district court’s grant of habeas relief.

(possibly relisted after the January 18 conference)

 

Returning Relists

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7, January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(relisted after the December 7, January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Moore v. Texas, 18-443.

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(relisted after the December 7, January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Schock v. United States, 18-406

Issues: (1) Whether a member of the legislative branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4 and January 11 conferences; likely relisted after the January 18 conference)

 

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; likely relisted after the January 18 conference)

 

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; likely relisted after the January 18 conference)

 

Nielsen v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 conference; likely relisted after the January 18 conference)

 

Kahler v. Kansas, 18-6135

Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

(relisted after the January 11 conference; record requested)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 29, 2019, 12:08 PM), https://www.scotusblog.com/2019/01/relist-watch-135/