John Elwood previews next Monday’s likely relists.

This week’s installment is going to be brief, but at least it won’t be funny. It’s not just that I’m pressed for time, though I am: As I type this, the power is out for my entire neighborhood, and I sit hunched over my laptop in inky blackness. Apparently, the universe has decided that my gratuitous hyperlinks need to be given a rest.

There was one grant out of last week’s relists, pushing the Kansas Supreme Court into an early lead as the most-reviewed court of October Term 2019.  I’m confident that court will not be leading the leagues by summer.

There is no conference this week, which means that cases will not be relisted on the docket until next Monday. What follows is our best guess about their identity. There appear to be two new relists. One week after Justice Elena Kagan’s crack suggesting the Supreme Court is a bit too prone to overrule precedent – for a differing viewpoint, see here – both of this week’s likely relists ask the court to do just that.

For sheer headline grabbery, it’s hard to beat Klein v. Oregon Bureau of Labor and Industries, 18-547. The facts of that case will seem familiar to anyone who hasn’t been comatose in the last year: Melissa and Aaron Klein, who owned a bakery in the Portland suburbs called Sweetcakes by Melissa, refused to make a wedding cake for a lesbian couple’s nuptials because they believe that marriage is limited to the union of a man and a woman. The couple in question, Rachel and Laurel Bowman-Cryer, filed a complaint with a state administrative agency, which fined the Kleins $135,000 for violating state laws barring businesses from discriminating based on sexual orientation. A state appeals court upheld that ruling, rejecting the Kleins’ argument that applying the state’s anti-discrimination laws to them violates the First Amendment by compelling them to “express a message—a celebration of same-sex marriage—with which they disagree.”

The only thing that could make this case more perfect Twitter fodder would be if the petitioner had a more colorful name – to just pull a name out of thin air, how about “Masterpiece Cakeshop”? Because this case is an obvious sequel to October Term 2017’s most headline-grabbing case. In fact, it has even broader implications than Masterpiece because in addition to the question that launched 95 amicus briefs in that case – whether bakers can be required to engage their expressive efforts in a manner contrary to their sincerely held religious beliefs – the Kleins ask the court to overrule its seminal 1990 decision in Employment Division, Department of Human Resources of Oregon v. Smith, the decision that prompted Congress to enact the Religious Freedom Restoration Act of 1993. To quote Smith’s author, Justice Antonin Scalia, the court held in that case that the Constitution’s free exercise clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” If the court grants in Klein, I predict the broader framing of the questions presented will mean that the tidal wave of green briefs filed in that case will swamp the sea of briefs in Masterpiece. (As an aside, the Kleins filed an amicus brief in Masterpiece.)

That brings us to Daniel v. United States, 18-460, which involves one of the most consistently depressing subjects confronted by frequent readers of federal appellate decisions – the Feres doctrine, so named because of the leading case, Feres v. United States. That doctrine basically stands for the proposition that the government’s waiver of sovereign immunity under the Federal Tort Claims Act does not extend to injuries sustained by members of the U.S. armed forces while on duty caused by the negligence of other service members. Daniel is a perfect example, as well as a story of the modern military in a microcosm. Lieutenant Rebekah Daniel died during childbirth in a military hospital. Her heirs are eligible for various statutory benefits because of her death. But their effort to sue the government under the FTCA for negligence in treating Daniel’s fatal postpartum hemorrhage came to naught because of the Feres doctrine, because her death arose out of or occurred in the course of activity incident to service.

Lieutenant Daniel’s husband Walter has petitioned for review, asking whether the Feres doctrine should apply to claims for medical malpractice under the Federal Tort Claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death.” I cannot tell you how many similar decisions I’ve read, or how many times I have seen calls for Feres to be overruled. But I can tell you that this is the first time since 2013 that the court has relisted a petition seeking to overrule Feres, and before that it was 2011, which was so long ago that I actually hyphenated “re-list,” like I was T. Herman Zweibel or something. Time will tell whether the intervening changes in court personnel change the outcome here.

That’s all for this week. Thanks to Ben Moss for compiling the relists.

 

New Relists

Daniel v. United States, 18-460

Issues: (1) Whether the Feres doctrine bars service members, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act when the medical treatment did not involved any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death; and (2) whether Feres should be overruled for medical malpractice claims brought under the Federal Tort claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death.

(apparently relisted after the March 29 conference)

 

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(apparently relisted after the March 29 conference)

 

Returning Relists

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, January 11, January 18, February 15, February 22, March 1, March 15 and March 22 conferences; apparently relisted after the March 29 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, January 11, January 18, February 15, February 22, March 1, March 15 and March 22 conferences; apparently relisted after the March 29 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, January 11, January 18, February 15, February 22, March 1, March 15 and March 22 conferences; apparently relisted after the March 29 conference)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8

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, January 11, January 18, February 15, February 22, March 1, March 15 and March 22 conferences; apparently relisted after the March 29 conference)

 

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after March 22 conference; apparently relisted after the March 29 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; now held)

 

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; now held)

 

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; now held)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 3, 2019, 10:04 AM), https://www.scotusblog.com/2019/04/relist-watch-141/