This week we highlight petitions pending before the Supreme Court that address, among other things, whether a local ordinance that discriminates against interstate commerce, and was enacted for a discriminatory purpose, must discriminate exclusively against nonresidents to be subject to heightened scrutiny under the dormant commerce clause; whether a claim for violation of a prisoner-patient’s 14th Amendment right to informed consent requires a showing of deliberate indifference and proof of refusal; and whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution—but in reliance on a statute or court ruling that is later declared unconstitutional—to keep that money or property when the owner sues for its return.

The petitions of the week are below the jump:

Center for Biological Diversity v. Wolf
19-975
Issue: Whether Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—which grants the secretary of the Department of Homeland Security unfettered discretion to waive all federal, and related state, local, and tribal laws, regulations and legal requirements, and sets forth no standards or criteria to apply in determining whether such waiver is necessary for expeditious border-wall construction—violates the separation of powers, the nondelegation doctrine and the presentment clause of the Constitution.

Jessop v. City of Fresno, California
19-1021
Issue: Whether it is clearly established that the Fourth Amendment prohibits police officers from stealing property listed in a search warrant.

Rosenblatt v. City of Santa Monica, California
19-1081
Issues: (1) Whether a local ordinance that discriminates against interstate commerce, and was enacted for a discriminatory purpose, must additionally discriminate exclusively against nonresidents to be subject to heightened scrutiny under the dormant commerce clause; and (2) whether a local ordinance that purports to ban advertisements for interstate services made over the internet, and is enforced in that extraterritorial manner, can be saved from dormant commerce clause scrutiny based on an irrebuttable “presumption” that the legislature did not “intend” for the ordinance to apply in the extraterritorial manner in which the ordinance is being enforced.

Deasey v. Slater
19-1085
Issue: Whether, for purposes of qualified immunity, a merely “sufficiently analogous” case is enough to show that the law is “clearly established,” or whether something more is required, i.e., a “closely analogous” case finding the alleged violation unlawful.

Sharp v. Harris
19-1105
Issues: (1) Whether, in holding that the Oklahoma Court of Criminal Appeals made an “unreasonable determination of the facts,” the U.S. Court of Appeals for the 10th Circuit contravened the Supreme Court’s repeated admonition that “state-court decisions be given the benefit of the doubt,” as in Cullen v. Pinholster and Woodford v. Visciotti; and (2) whether the OCCA was objectively unreasonable in crediting the testimony of three experts who opined that the respondent, Jimmy Dean Harris, was not intellectually disabled and in not crediting the testimony of the one dissenting doctor, who has been censured, used an outdated test, made no assessment of adaptive functioning and disregarded the influence of factors he acknowledged could influence IQ test scores.

Sharp v. Smith
19-1106
Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit erred in concluding that Moore v. Texas I and Moore v. Texas II were mere applications of Atkins v. Virginia that could be applied retroactively on collateral review, contrary to Shoop v. Hill and the U.S. Court of Appeals for the 11th Circuit; (2) whether, in sua sponte holding that the Oklahoma Court of Criminal Appeals did not rule on the adaptive-functioning prong because its analysis was too cursory, the 10th Circuit violated the Supreme Court’s precedent that forbids the imposition of opinion-writing standards, Johnson v. Williams; and (3) whether, reviewed de novo or with deference, the 10th Circuit erred in granting habeas relief on the respondent Roderick Smith’s claim of adaptive-functioning deficits when Smith’s only expert to opine on this prong improperly administered the adaptive-functioning assessment directly to Smith, contemporaneously administered other tests to Smith that showed malingering and relied on information that was disputed by other witnesses.

National Collegiate Athletic Association v. New Jersey Thoroughbred Horsemen’s Association
19-1114
Issues: (1) Whether a party was “wrongfully enjoined” under Federal Rule of Civil Procedure 65(c) when the district court confirmed via the grant of a permanent injunction that its entry of a temporary restraining order was correct under then-applicable law; and (2) whether a district court retains its full equitable discretion to deny recovery on a Rule 65(c) injunction bond.

Mooney v. Illinois Education Association
19-1126
Issues: (1) Whether 42 U.S.C. § 1983 provides a “good-faith defense” to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution—but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional—to keep that money or property when the owner sues for its return.

Danielson v. Inslee
19-1130
Issues: (1) Whether 42 U.S.C. § 1983 provides a “good-faith defense” to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution—but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional—to keep that money or property when the owner sues for its return.

Knight v. Grossman
19-1138
Issue: Whether a claim for violation of a prisoner-patient’s 14th Amendment right to informed consent requires a showing of deliberate indifference and proof of refusal or whether the approach adopted by a majority of circuits, which applies a balancing test weighing, on one hand, the state’s interests in providing for the basic needs of prisoners and, on the other hand, the prisoner’s right to such information as is reasonably necessary to make an informed decision to accept or reject proposed treatment as well as a reasonable explanation of the viable alternative treatments available, should control.

Posted in Center for Biological Diversity v. Wolf, Jessop v. City of Fresno, California, Rosenblatt v. City of Santa Monica, California, Deasey v. Slater, Sharp v. Harris, Sharp v. Smith, National Collegiate Athletic Association v. New Jersey Thoroughbred Horsemen’s Association, Mooney v. Illinois Education Association, Danielson v. Inslee, Knight v. Grossman, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Apr. 8, 2020, 9:50 AM), https://www.scotusblog.com/2020/04/petitions-of-the-week-90/