John Elwood reviews Monday’s relist.

Whatever the opposite of “status quo watch” is, that is what we have this week. In one remarkable day, the Supreme Court denied review to the 10 relisted firearm cases (over the dissenting opinion of Justice Clarence Thomas, joined by Justice Brett Kavanaugh and, somewhat surprisingly, no one else); the nine relisted qualified immunity cases (over the dissenting opinion of Thomas, who argued that “[b]ecause our [42 U.S.C.] §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition,” and, somewhat surprisingly, no one else); the federal government’s challenge to California’s “sanctuary state” laws (over the noted dissent of Thomas and Justice Samuel Alito); and one prisoner’s rehearing petition challenging the idea that bank robbery is legally a “crime of violence.” (The companion case, Rogers v. United States, 19-7320, is now being held for some other case.)

On the happy side of the ledger (at least from the perspective of petitioners), the court granted cert in one of the two related arbitration cases (welcome back Henry Schein, Inc. v. Archer and White Sales, Inc., 19-963), and denied the second (so sorry, Archer and White Sales, Inc. v. Henry Schein, Inc., 19-1080). And it granted one of the cases involving the detention of immigrants (congratulations, Albence v. Guzman Chavez, 19-897!), and it appears to be holding the second (please get comfortable, Albence v. Arteaga-Martinez, 19-896; you’ll be here a while).

That brings us to Andrus v. Texas, 18-9674, which I think is the second most-relisted case of all time, right behind Ryan v. Hurles. Terence Andrus’ petition was filed just over one year ago. It’s been rescheduled or relisted since October 16 of last year. In an unsigned per curiam opinion, the Supreme Court summarily vacated the judgment of the Texas Court of Criminal Appeals upholding Andrus’ murder conviction and concluded that Andrus had been given constitutionally ineffective assistance of counsel because the lawyer at his murder trial “performed almost no” investigation into evidence mitigating his crime, “overlooking vast tranches of mitigating evidence.” But although Andrus had asked the court to revisit its long-established test for determining effectiveness, the court just sent the case back to Texas Court of Criminal Appeals to consider whether Andrus had been prejudiced by his counsel’s poor performance. Alito, joined by Thomas and Justice Neil Gorsuch, dissented, saying that the court’s decision was “hard to take seriously” because the state court had specifically concluded that Andrus had not shown he had been prejudiced by his counsel’s failings. But the line that jumped out at me from Alito’s dissent, in light of all that happened this week on the relist front, was his acknowledgement that at least the court’s summary vacatur “clears this case off the docket.”

So what is left? Just one lonely relist: Kansas’ petition in Kansas v. Boettger, 19-1051, asking whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear. The court left that question open in Elonis v. United States, which held that a showing that a criminal defendant was negligent in failing to appreciate that the listener would consider a statement to be a threat was insufficient to violate the federal threat statute. If you’ve read this far, you’ve finally figured out that I’ve buried the lede: There are no new relists. 

That’s all for this week. Until next week, stay safe!

New Relists

Um.

Returning Relists

Kansas v. Boettger, 19-1051
Issue: Whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear.
(relisted after the June 4 and June 11 conferences)

Posted in Kansas v. Boettger, Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch: And then there was one, SCOTUSblog (Jun. 16, 2020, 10:47 AM), https://www.scotusblog.com/2020/06/relist-watch-and-then-there-was-one/