on Nov 12, 2020 at 10:09 am
John Elwood reviews Monday’s relists.
Last week, the Supreme Court relisted Carr v. Saul, 19-1442, and Davis v. Saul, 20-105, two cases addressing whether claimants seeking disability benefits under the Social Security Act must challenge the constitutionality of their administrative law judge’s appointment during agency proceedings to be able raise them later in court. The Supreme Court relisted both cases to decide which of the two to take. The justices compromised by taking both. I don’t know enough about the issue to make a prediction at this point about the outcome. But I do have a prediction about the argument.
That brings us to this week’s new relists — or should I say, this week’s new relist. Cedar Point Nursery v. Hassid, 20-107, involves a property question so singular it reminds me of the kind of super-specific questions law nerds ordinarily only encounter in the habeas corpus context: whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment. The case involves a California regulation that allows union organizers to enter the property of growers. Organizers invoked that authority in California 62 times during 2016. The U.S. Court of Appeals for the 9th Circuit held that requiring such access did not constitute a per se physical taking compensable under the Fifth Amendment. Petitioners seek to revisit that decision.
Cedar Point Nursery v. Hassid, 20-107
Issue: Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.
(relisted after the Nov. 6 conference)
Shinn v. Kayer, 19-1302
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated 28 U.S.C. § 2254’s deferential standard, and employed a flawed methodology that the Supreme Court has repeatedly condemned, when it granted habeas relief based on a de novo finding that a Sixth Amendment violation had occurred.
(relisted after the Sept. 29, Oct. 9, Oct. 16, Oct. 30 and Nov. 6 conferences; record requested before the Oct. 15 conference and received Oct. 28)