John Elwood reviews Monday’s relists.

A lot of movement on the relist front this week. Most noteworthy of all, the Supreme Court granted the longsimmering trio of cases involving whether Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation or discrimination on the basis of gender identity. At 10 relists each, the cases were well past the usual “sell by date” at which it’s more likely that the cases will be the subject of a summary reversal or a dissent from denial of cert than a grant of plenary review. The court also granted cert in a case that will settle once and for all the question of what is the dullest case the Supreme Court has ever taken: CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 18-565, the one-time relist that asks whether under federal maritime law a safe-berth clause in a voyage charter contract is a guarantee of a ship’s safety or just imposes a duty of due diligence. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this casezzzzzzzzzzzzzzzzzz.] Last was Barton v. Barr, 18-725, which asks whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] … inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1), which affects an alien’s eligibility for relief from deportation.

It’ll be a challenge to summarize this week’s relists in just a couple sentences. That’s because I can’t think of anything to say beyond, “There aren’t any.” Really. We’ve double checked. So instead, let me say a little bit about one case the court has repeatedly rescheduled and that has garnered some attention: Doe v. Boyertown Area School District, 18-658.

Boyertown Area School District, northwest of Philadelphia, allows some transgender students to use high school locker rooms and restrooms that match their gender identity. Some cisgender students brought suit, arguing that Boyertown’s practice forces students using those facilities to be seen by the opposite sex when they are partially or fully undressed, or to forgo using the facilities altogether. (There are, however, single-person facilities available.) Although the U.S. Court of Appeals for the 3rd Circuit held that students have a constitutional right not to be seen undressed by persons of the opposite sex, it upheld the policy as narrowly tailored to further a compelling state interest. The challengers now seek Supreme Court review, asking whether, given students’ constitutionally protected privacy interest in their partially clothed bodies, a public school has a compelling interest in authorizing transgender students to use locker rooms and restrooms aligned with their gender identity. The petition also asks whether Boyertown’s practice constructively denies access to locker room and restroom facilities under Title IX of the Education Amendments Act of 1972 “on the basis of sex.” And here again is an explanation of the difference between rescheduled and relisted cases.

Thanks to Ben Moss for laboring to determine that there are no new relists. Now if you’ll excuse me, I have to go pat myself on the back for being a 52-year-old person who used “cisgender” in a sentence. Hopefully correctly.

 

New Relists

 

Returning Relists

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, March 22, March 29, April 12 and April 18 conferences)

 

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, March 29, April 12 and April 18 conferences)

 

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)

 

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 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; 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.

(relisted after the March 29, April 12 and April 18 conferences)

 

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.

(relisted after the March 29, April 12 and April 18 conferences)

 

City of Newport Beach, California v. Vos, 18-672

Issues: (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.

(relisted after the April 12 and April 18 conferences)

 

Dahne v. Richey, 18-761

Issue: Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.

(relisted after the April 12 and April 18 conferences)

 

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United StatesUnited States v. BagleyBrady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12 and April 18 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Reschedule Watch Returns, SCOTUSblog (Apr. 24, 2019, 5:23 PM), https://www.scotusblog.com/2019/04/reschedule-watch-returns/