Relist Watch

John Elwood briefly reviews the likely relists.

This is not a time of year that is usually known for being relaxing. For normal humans, this is the winter of their discontent, a period of bad weather between the end of the football season and the start of spring training. But for Supreme Court-watchers like me, the period between the last January conference and the mid-February conference is like one long vacay. Thats because we have the better part of a month with only one set of relists.

Mind you, the court wont actually identify the relists by updating the docket until closer to the February 21 conference (probably Tuesday the 18th; that Monday is Washingtons Birthday). So during the interim, we are left to speculate. What follows is our best guess of what the relists will be based on which cases the court left unresolved after the January 24 conference. In short, it looks like we will probably have two new relists — relatively few given the number of cases that were considered at that conference.

Arizona v. California, 22O150, is a rare kind of relist: It involves a beef between two states, as Arizona is seeking leave to file a bill of complaint in the Supreme Court against California. Relists of cases on the courts original jurisdiction docket are so rare that I can only remember two others during the nine years Ive been doing Relist Watch, meaning that there cant have been more than a few dozen.

Arizona alleges that California has been applying its doing-business tax to Arizona-based limited liability corporations based solely on their passive investment in California corporations or LLCs, and that such application violates the due process clause. The court called for the views of the solicitor general, who recommends that the court deny Arizonas motion for leave to file a bill of complaint. In short, the SG argues that Arizona is not asserting sovereign interests that would warrant filing an original action. He maintains that the issues Arizona seeks to present can be adequately raised and litigated by Arizona entities that are actually subject to the tax, with the added bonus that those disputes wouldnt involve a giant facial challenge. Instead, each dispute would be based on developed and discrete factual records concerning affected entities and with the benefit of authoritative interpretations of the relevant statutes by the California courts.

Its 2020, and yet there somehow continue to be cert petitions involving the Antiterrorism and Effective Death Penalty Act, the Armed Career Criminal Act and arbitration. The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672, involves yet another arbitration question, this one arising from the decision by the Rams football team to relocate from St. Louis to Los Angeles in 2016.

The Supreme Court has emphasized that the purpose of the FAA is to ensure that arbitration agreements are enforced according to their terms and placed on equal footing with all other contracts. For the threshold question whether courts or arbitrators should decide arbitrability, the court has written that the parties intent to commit the decision to arbitrators must be clear and unmistakable. Missouri state courts held in this case that the question of arbitrability was for the courts to decide.

Basically, the question presented here is whether the clear and unmistakable test for determining whether the parties have agreed to arbitrate arbitrability is just an application of the FAAs background equal footing standard, or requires something more. The Rams contend that the parties agreement to arbitrate arbitrability is enforceable so long as its clear enough to be enforceable under the states background contract law, and that it doesnt require particular clarity that state law would not ordinarily require for other contracts. The St. Louis Convention and Sports Complex Authority argues in response that any confusion over the proper interplay between the equal-footing doctrine and the clear and unmistakable evidence standard is not implicated here, because Missouri law does apply the equal-footing doctrine to agreements to arbitrate arbitrability. In a case in which the question presented requires a page-long introduction, its no wonder that the court wants a little more time to decide what to do.

Thats all for now. Ill be back after the first Nationals game of 2020 — against the Astros, natch.

New Relists

Arizona v. California, 22O150

CVSG: 12/9/2019.

(likely relisted after the January 24 conference)

The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672

Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.

(likely relisted after the January 24 conference)

Returning Relists

Andrus v. Texas, 18-9674

Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced inStrickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated no prejudice analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsels ineffective representation.

(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10 and January 17 conferences; likely relisted after the January 24 conference)

Reed v. Texas, 19-411

Issues: (1) How a court should consider under theBradymateriality standard the impact of a key trial witness’s assertion of the privilege against self-incrimination and refusal to testify when confronted with the suppressed exculpatory evidence; (2) when expert testimony relied on by the state in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the states use of the testimony violated due process; and (3) whether the conviction or execution of a person who is actually innocent of a crime violates the U. S. Constitution.

(relisted after the November 22, 2019, December 6, 2019, December 13, 2019, January 10 and January 17 conferences; likely relisted after the January 24 conference)

Patterson v. Walgreen Co., 18-349

Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is reasonable per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be reasonable as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employers burden in establishing undue hardship, as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion ofTWA v. Hardisonopining that undue hardship simply means something more than a de minimis cost should be disavowed or overruled.CVSG: 12/9/2019.

(rescheduled before the February 15, 2019 and February 22, 2019 conferences; relisted after the March 1, 2019, January 10 and January 17 conferences; likely relisted after the January 24 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.CVSG: 12/6/2019.

(relisted after the March 29, 2019, April 12, 2019, April 18, 2019, April 26, 2019, May 9, 2019, May 16, 2019, May 23, 2019, May 30, 2019, June 6, 2019, June 13, 2019, January 10 and January 17 conferences; likely relisted after the January 24 conference)

Ricks v. Idaho Contractors Board, 19-66

Issue: Whether the Supreme Court should revisit its holding in Employment Division v. Smith that the free exercise clause generally requires no religious exemptions from laws that are neutral and generally applicable.

(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Fulton v. City of Philadelphia, 19-123

Issue: Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim namely that the government would allow the same conduct by someone who held different religious views as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whetherEmployment Division v. Smithshould be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agencys ability to participate in the foster-care system on taking actions and making statements that directly contradict the agencys religious beliefs.

(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Americans for Prosperity Foundation v. Becerra, 19-251

Issue: Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context as called for byNAACP v. Alabama ex rel. Pattersonand its progeny can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Thomas More Law Center v. Becerra, 19-255

Issues: (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; and (2) whether Californias disclosure requirement violates charities and their donors freedom of association and speech facially or as applied to the Thomas More Law Center.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 19-296

Issues: (1) Whether deference underChevron U.S.A. v. Natural Resources Defense Council, rather than the rule of lenity, takes precedence in the interpretation of statutory language defining an element of various crimes when such language also has administrative applications; (2) whether, ifChevrondeference applies and takes priority over the rule of lenity, such deference can be waived in the course of litigation and on appeal; and (3) whether, ifChevrondeference applies and cannot be waived,Chevronshould be overruled.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Cannon v. Seay, 19-311

Issues: (1) Whether, in review of a state decision under28 U.S.C. 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendants objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial courts fact-finding; and (2) whether, in granting relief under 28 U.S.C. 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court inArizona v. Washingtonand accord deference to the state courts ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the courts oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the states mistrial motion.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Arlenes Flowers, Inc. v. Washington, 19-333

Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)

Baldwin v. United States, 19-402

Issues: (1) WhetherNational Cable & Telecommunications Association v. Brand X Internet Services should be overruled; and (2) whether a federal agencys statutory construction should receive any deference when it contradicts a courts precedent and disregards traditional tools of statutory interpretation, such as the common-law presumption canon.

(relisted after the January 10 and January 17 conferences; likely relisted after the January 24 conference)