No new relists, but you should read anyway
on May 19, 2021 at 3:47 pm
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
I will be the first to admit: Relist Watch has a deeply ingrained preference for things new. Week after week, we devote virtually all our attention to newly relisted cases, mentioning the fate of relisted cases only intermittently, if at all. Well, this week, we have no choice but to discuss the “old” relists, because there are zero new relists this week. That’s right, there are 157 petitions slated for consideration at this Thursday’s conference, and not one is being considered for only the second time.
But that doesn’t mean that nothing happened on the relist front this week. Far from it. The justices conducted a lot of spring cleaning this week. The big news is that the court granted review in the closely watched Dobbs v. Jackson Women’s Health Organization, 19-1392, which presents the issue whether all pre-viability prohibitions on elective abortions are unconstitutional. The case has been kicking around since September, as the court rescheduled it nine times and relisted it 12 times, making it second only to Masterpiece Cakeshop v. Colorado Civil Rights Commission (14 relists) as the most-relisted case to be granted review. A case relisted so many times is usually on its way to denial of review, with its only possible condolence an opinion dissenting from that disposition. The court also granted review on two one-time relists, Badgerow v. Walters, 20-1143, involving arbitration law, and Shinn v. Ramirez, 20-1009, involving limitations on evidentiary development for state criminal cases being reviewed by federal courts on petitions for habeas corpus.
But this week’s order list was a bloodbath for other serial relists. The court denied review in 12-time relist Harris v. Maryland, 20-101, and six-time relist Woodard v. United States, 20-6387, involving prohibitions on delay in prosecution of criminal cases; three-time relist Allen v. Wells Fargo & Co., 20-866, involving lawsuits against pension-fund fiduciaries; and two-time relist Ericsson Inc v. TCL Communication Technology Holdings Limited, 20-1130, involving a couple questions of issue preservation and appellate procedure. Cert was denied without comment in all of them. With just over a month still remaining in the Supreme Court’s term and 29 merits cases left to decide, the justices may have decided not to devote the resources to comment on the decisions not to review those cases.
With no new relists to comment on, at the risk of mission creep, I will comment on the most noteworthy of the petitions the court has recently “rescheduled” — a process by which a justice can delay the initial consideration of a case at conference by moving it from one scheduled conference to a later one. Many cases were rescheduled for the first time this week, but one in particular jumped out at me: National Coalition for Men v. Selective Service System, 20-928. The case presents the question whether, in light of the fact that the Department of Defense has lifted the ban on women serving in combat roles in the armed forces, the Supreme Court should overrule Rostker v. Goldberg, which upheld male-only draft registration because women at that time were categorically prohibited from serving in combat roles. A men’s rights organization, backed by the American Civil Liberties Union, argues that the federal requirement that men but not women register for the Selective Service violates the right to equal protection guaranteed by the Fifth Amendment. It’s impossible to tell what the decision to reschedule the case means. On the whole, rescheduled cases seem to do poorly, but clearly, the case has at least one of the justices’ attention.
If you’re looking for new relists here, you need to work on being present and focusing.
Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]
Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, April 30 and May 13 conferences)
Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30 and May 13 conferences)