John Elwood reviews the first relists of 2019.

Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still lazily finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be heard in the March sitting. And at the same time, the justices granted certiorari to review four cases – none of them relisted – that will likely be the first cases on the court’s April argument calendar. The court also got busy with all the serial relists identified in our last installment. True to the statistics, none of those repeated relists led to grants, just summary vacaturs and dissents from denial of cert.

A full April calendar would probably consist of around 12 cases, which means the court is looking for something in the neighborhood of eight more cases to round out the last of the October Term 2018 arguments. Some cases considered at the court’s January 18 conference could squeeze in to the tail end of the April argument sitting by shaving a few days off the 30 days petitioners ordinarily would have to file reply briefs. But this Friday’s conference is where the court is likely to decide on the bulk of the April sitting.

Luckily for law nerds everywhere, the court has plenty to work with – the court has relisted a whopping 19 new cases this week, joining the seven returning relists. This is such a high-traffic area that I’ll have to be a little summary in describing the cases.

There are a ton of important cases at this conference. But there’s no question which of the relists have gotten the most attention – and which hold out the most promise of helping to make October Term 2018 noteworthy. Bostock v. Clayton County, Georgia, 17-1618, and Altitude Express Inc. v. Zarda, 17-1623, raise the question of 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. R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107, raises the related question of whether that prohibition includes a person’s gender identity so as to protect people from discrimination based on their transgender status.

You have your choice of hot-button issues after that. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483, involves the constitutionality of an Indiana law prohibiting abortions performed solely because of the race, sex or disability of the fetus, and also requiring facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation, rather than as medical waste. The U.S. Court of Appeals for the 7th Circuit enjoined those laws by a 2-1 vote. The appeals court voted for rehearing en banc, but then reinstated the panel decision when one judge who had voted for rehearing recused himself, leaving the court equally divided.

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280, is similarly high-profile. That case involves a challenge to the constitutionality of New York City’s law that regulates where a handgun owner can carry their handgun. It limits them to possessing their gun at the address listed on their handgun license, with the sole exception of transporting the gun “directly to and from” one of approximately seven “authorized small arms range/shooting club[s], unloaded, in a locked container, the ammunition to be carried separately.” The challengers, represented by former Solicitor General Paul Clement, argue that the transport restrictions violate the Second Amendment, the commerce clause and the constitutional right to travel, noting that the restrictions would even prevent a handgun owner from transporting their gun to a second home outside the city for purposes of protecting themselves within the home. We’ll see whether this becomes the first gun-rights case the court takes up in many years or whether the Second Amendment remains (in Justice Clarence Thomas’ words) “a disfavored right in this Court.”

Sexual orientation/gender identity, abortion and guns – I have this nagging feeling that we haven’t quite hit every divisive topic yet. Oh yes, we still need religion. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364, and The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365, will take care of that. Those cases involve Morris County, New Jersey’s preservation grants for historic buildings. A state court interpreted the New Jersey state constitution to forbid using public funds to repair or restore churches, however historic they are. The court rejected the argument that the First Amendment prohibits excluding houses of worship from generally available preservation funds earmarked for repairing or restoring historic buildings. Morris County’s Board of Chosen Freeholders and a group of affected churches seek to revisit that ruling. The ubiquitous Erwin Chemerinsky, dean of Berkeley Law School, has made time to represent respondents the Freedom from Religion Foundation.

The hits just keep coming. Aaron Schock was a political wunderkind in Illinois politics, becoming at 19 the youngest person serving on a school board in Illinois, at 23 the youngest person ever to serve in the Illinois General Assembly, and at 27 the youngest member of Congress and the first-ever member born in the 1980s. Schock resigned from Congress in 2015 amidst press allegations of spending and financial-disclosure irregularities, and in 2016 was charged with misuse of government funds and related charges. Schock moved to dismiss the indictment on the ground that the charges were based on supposed violations of ambiguous House of Representatives rules, which he argued violated the Constitution’s rulemaking clause and the speech-or-debate clause. The district court rejected the motion. On appeal, the 7th Circuit ruled that it lacked jurisdiction to review an interlocutory appeal of a rulemaking clause claim; although the court acknowledged it had jurisdiction over an interlocutory appeal of Schock’s speech-or-debate-clause claim, the court rejected that argument on the merits. In Schock v. United States, 18-406, the former congressman argues that the 7th Circuit erred.

We have a couple more juicy constitutional issues. Ramos v. Louisiana, 18-5924, presents the question whether the 14th Amendment incorporates the Sixth Amendment guarantee of a unanimous verdict in criminal cases. In Apodaca v. Oregon, the Supreme Court concluded that the Sixth Amendment required that juries convict by a unanimous vote, but concluded that this requirement does not apply to the states; accordingly, a state criminal defendant may lawfully be convicted based on (for example) a 9-3 vote. As Professor Eugene Volokh has explained, “Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law.” In October Term 2010, Volokh asked the court to overrule Apodaca. Back then, the Supreme Court denied the petition without even relisting it. We’ll know soon whether Evangelisto Ramos has any more luck. Given Justice Neil Gorsuch’s reaction during the recent argument in Timbs v. Indiana to the idea that portions of the Bill of Rights would not be incorporated against the states (“Really? Come on, General.”), he might.

That brings us to Mitchell v. Wisconsin, 18-6210. Wisconsin has enacted an “implied consent” law that provides that “[a]ny person who … drives or operates a motor vehicle upon the public highways of this state … is deemed to have given consent to one or more tests of his or her breath, blood or urine” for purposes of determining the presence of alcohol or controlled substances in their system. The same law also provides that “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent,” which as a practical matter allows the state to draw an unconscious person’s blood if the police have probable cause to suspect drunk driving. Petitioner Gerald Mitchell argues that by allowing warrantless blood draws, the statute violates the Fourth Amendment’s warrant requirement.

Quarles v. United States, 17-778, United States v. Herrold, 17-1445, Secord v. United States, 17-7224, Ferguson v. United States, 17-7496, and Moore v. United States, 17-8153, all present the same issue. The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory 15-year prison term upon any convicted felon who unlawfully possesses a firearm and who has three or more prior convictions for any “violent felony,” which includes any felony burglary conviction. In Taylor v. United States, the Supreme Court held that Section 924(e) uses the term “burglary” in its generic sense, to cover any crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” All four cases ask whether Taylor’s definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure. (Herrold v. United States, 17-9127, is a conditional cross-petition that raises related issues.)

The government has conceded that there is a split and acquiesced in Supreme Court review of Quarles, which it said was a better vehicle than Secord, Ferguson and Moore. This seems like a good time for a [Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in that case]. Later, the government filed its own petition in Herrold, and said that perhaps that was the vehicle the court should take, or it should take both that and Quarles. The court is widely believed to be experiencing a bit of “ACCA fatigue” because of the large number of cases it has decided in recent years involving that statute. Perhaps for that reason, it held these cases pending the decision in United States v. Stitt in the hopes that Stitt (involving whether burglary of a structure or vehicle adapted or customarily used for overnight accommodation was “generic burglary”) would shed light upon them. It didn’t. We’ll know soon whether the court will look into the meaning of ACCA once again.

I’m going to have to get a bit summary here if we’re going to finish this post before the court starts issuing grants. McDonough v. Smith, 18-485, involves the statute of limitations for a claim under 42 U.S.C. § 1983 based on fabrication of evidence in criminal proceedings; it asks whether the statute begins to run when criminal proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held in Edward McDonough’s case. North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457, asks whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency. Lastly, Parker Drilling Management Services, Ltd. v. Newton, 18-389, involves whether California state overtime and wage laws apply to drilling rigs in the ocean on the outer continental shelf under the Outer Continental Shelf Lands Act. [Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in that case as well.]

Phew. That’s all for this week. Thanks again to Ben Moss for making the heroic effort of compiling all these relists.

 

New Relists

Quarles v. United States, 17-778

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

(relisted after the January 4 conference)

 

United States v. Herrold, 17-1445

Issue: Whether a state offense that criminalizes continued unpermitted presence in a dwelling following the formation of intent to commit a crime has “the basic elements of unlawful … remaining in … a building or structure, with intent to commit a crime,” thereby qualifying as “burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the January 4 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 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 conference)

 

Secord v. United States, 17-7224

Issue: Whether — when, for the purposes of the Armed Career Criminal Act, generic burglary occurs when a defendant unlawfully enters a building or unlawfully remains in the building, with the intent to commit a crime — the requisite intent to commit a crime must exist when the defendant enters or decides to remain in the building, or whether the intent may be formed at any time while the defendant is present in the building.

(relisted after the January 4 conference)

 

Ferguson v. United States, 17-7496

Issue: Whether the Taylor v. United States definition of generic burglary in the Armed Career Criminal Act extends to burglary statutes that do not require an intent to commit a further crime at the time of entry, as held by the U.S. Court of Appeals for the 4th Circuit and the court below, or whether it only encompasses burglary statutes that require such intent at the time of entry, as held by the U.S. Courts of Appeals for the 5th and 8th Circuits.

(relisted after the January 4 conference)

 

Moore v. United States, 17-8153

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or initial unlawful remaining, as two circuits hold, or whether, as the court below and three other circuits hold, it is enough that the defendant formed the intent to commit a crime at any time while unlawfully “remaining in” the building or structure.

(relisted after the January 4 conference)

 

Herrold v. United States, 17-9127

Issues: (1) Whether the Texas burglary statute — which states that a person commits burglary of a “habitation” if the target of the burglary is “a structure or vehicle that is adapted for the overnight accommodation of persons” — is a generic burglary statute for the purposes of the Armed Career Criminal Act; and (2) whether — if both of petitioner’s prior burglary convictions are deemed “generic burglaries” and therefore violent felonies under the ACCA, in conflict with the majorities in the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 8th, 9th and 11th Circuits — the ACCA gave petitioner fair notice that both of his burglary convictions were “violent felonies.”

(relisted after the January 4 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 conference)

 

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280

Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

(relisted after the January 4 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 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 conference)

 

Parker Drilling Management Services, Ltd. v. Newton, 18-389

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether, under the Outer Continental Shelf Lands Act, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the U.S. Court of Appeals for the 5th Circuit has held, or whenever state law pertains to the subject matter of a lawsuit and is not pre-empted by inconsistent federal law, as the U.S. Court of Appeals for the 9th Circuit has held.

(relisted after the January 4 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 conference)

 

North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457

Issue: Whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency.

(relisted after the January 4 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 conference)

 

McDonough v. Smith, 18-485

Issue: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.

(relisted after the January 4 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 conference)

 

Mitchell v. Wisconsin, 18-6210

Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

(relisted after the January 4 conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30, December 7 and January 4 conferences)

 

Rehaif v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30, December 7 and January 4 conferences)

 

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 and January 4 conferences)

 

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 and January 4 conferences)

 

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 and January 4 conferences)

 

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 and January 4 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch Returns, SCOTUSblog (Jan. 9, 2019, 5:48 PM), https://www.scotusblog.com/2019/01/relist-watch-returns-2/