Relist Watch: And then there were none
on Jun 24, 2020 at 12:50 pm
John Elwood reviews the empty space where Monday’s relists would be.
I don’t know for sure what the justices will be talking about at their conference this week. But I do know what they won’t be talking about: relisted cases. That’s because there aren’t any. This is the first time I can recall that happening since March 2012.
The court denied cert on the sole returning relist, the state of 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. Justice Clarence Thomas filed a dissenting opinion explaining his view, based on his reading of founding-era sources, that “the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate.” Thomas’ dissent didn’t discuss the earliest American authority addressing the issue, State v. Benedict, which held that “[a] threat … must be intended to put the person threatened in fear of bodily harm.” But he already indicated in his dissent in Elonis v. United States, which left unresolved the constitutional minimum mental state for threat statutes, that the Vermont statute at issue in Benedict was “insufficiently similar” to the statute at issue in Elonis.
There were no new relists, so our work here is done. There are some very interesting petitions on for this week’s conference, so be sure to tune in Monday to see if any of them have been granted without a relist, and Wednesday or so to see if they’ve been relisted. Until then, stay safe!