Relist Watch: Kalsarikännit edition
on Apr 7, 2020 at 10:02 am
John Elwood reviews Monday’s relists.
Because it’s often said that the Germans have a word for everything, it’s worth checking in with the people who gave us schadenfreude and weltschmerz to see what they have to describe the current crisis. Both hamsterkauf (“hamster buying” = panic shopping) and kummerspeck (“grief bacon” = excess weight from emotional overeating) are perfect words for the moment, even if the German word for “lockdown” (ausgangsbeschränkung) doesn’t exactly roll off the tongue.
But judging from the news of the week, it’s the Finns who have contributed the word of the moment: Kalsarikännit. If you’re wondering what it means, I can either refer to you a long essay about how “kalsari- … is the unconjugated root of the word kalsarit (underwear …),” combined with “the plural form kännit of the word känni (drunkenness …),” or I can show you this picture of Homer Simpson. When you’re making your post-apocalypse travel choices, just remember that the Finnish Ministry of Foreign Affairs wants the world to know that this is a thing there.
Although mostly stranded at home, the justices were very productive this week. They disposed of three serial relists, and as forecast, the opinions are rolling in. In VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446, Justice Clarence Thomas dissented from denial of cert to make the point that he doubted the Equal Employment Opportunity Commission’s legal authority to continue investigating discrimination in cases it which it has already told complainants that they have the right to file suit. If the past is any guide, that will encourage more petitions down the road.
Halprin v. Davis, 19-6156, yielded a statement respecting denial from Justice Sonia Sotomayor, who wrote that although she was disturbed by facts suggesting that the judge presiding over a criminal case was prejudiced, she did not dissent because the petitioner had other avenues for possible relief. And in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455, involving bus-advertisement policies that prohibit religious themes, Justice Neil Gorsuch, joined by Thomas, issued an opinion respecting denial. They noted that “[b]ecause the full Court is unable to hear this case” (Justice Brett Kavanaugh took part when it was before the U.S. Court of Appeals for the District of Columbia Circuit), “it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted.” So it’s a clear indication that WMATA may want to consider revising its policies to avoid issues down the road.
All the rest of the relists are back again this week. Some of these cases are in prime territory for opinions. Chief among them is Andrus v. Texas, 18-9674, which was first relisted after the November 15 conference — about the time of the first known COVID-19 infection worldwide. Lot of water under the bridge since then.
The justices won’t have another conference until April 17. That means the court won’t relist cases on the docket until probably next Monday, April 13. So we necessarily have to speculate about what cases will be relisted next week. Our best guess is that there is only one, Van Buren v. United States, 19-783.
While Nathan Van Buren shares a surname with the only U.S. President who spoke English as a second language, he did less to distinguish himself in public life. As a police officer in northern Georgia, he agreed to search the supposed license-plate number of a woman in exchange for a loan from a shady figure (actually a police informant). He was convicted of violating the Computer Fraud and Abuse Act, which makes it a crime to “access a computer without authorization or exceed authorized access, and thereby obtain information from any protected computer.” Under the act, to “exceed authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”
Van Buren argues that he was improperly convicted of obtaining information on a computer that he “is not entitled so to obtain,” because he had permission to access the information, even if he did so for an improper purpose. The government agrees that “some disagreement exists in the circuits about the meaning of the phrase ‘exceeds authorized access.’” But it argues that “this case would be a poor vehicle for resolving that issue because the decision below is interlocutory and because the jury instructions at petitioner’s trial were consistent with petitioner’s narrower interpretation of ‘exceeds authorized access.’” We’ll find out in a couple of weeks whom the court believes there.
Issue: Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.
(likely relisted after the April 3 conference)
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland 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 counsel’s 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, January 17, January 24, February 21, February 28, March 6, March 20 and March 27 conferences; likely relisted after the April 3 conference)
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the January 10, January 17, March 6, March 20 and March 27 conferences; likely relisted after the April 3 conference)
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.
(relisted after the January 24, February 21, February 28, March 6, March 20 and March 27 conferences; likely relisted after the April 3 conference)
(relisted after the March 27 conference; likely relisted after the April 3 conference)