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Petitions of the week

House voting, DNA testing, a coach’s praying, and abortion returning

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the House of Representatives may vote by proxy, when the statute of limitations begins for state prisoners seeking DNA testing, a football coach’s post-game prayer and Texas’ new anti-abortion law.

For the first time in its history, the House of Representatives in May 2020 allowed absent members to delegate another member to vote on their behalf because of the public health emergency. House Minority Leader Kevin McCarthy, R-Calif., and other representatives filed suit on the ground that the Constitution requires in-person voting in Congress. The district court and U.S. Court of Appeals for the District of Columbia Circuit rejected these claims on the ground that the Constitution’s speech-or-debate clause prohibits judicial review of legislative actions such as voting. In McCarthy v. Pelosi, McCarthy maintains that the clause does not foreclose all judicial review and that other provisions, such as the quorum clause, indicate that physical attendance is a constitutional requirement.

In Skinner v. Switzer, the Supreme Court ruled that state prisoners could pursue post-conviction claims for DNA testing of crime-scene evidence in a federal civil rights action under 42 U.S.C. § 1983 if they have unsuccessfully sought testing under state procedures. In August 2019, Rodney Reed, convicted of a 1998 murder, filed a Section 1983 action in federal district court seeking DNA testing. The U.S. Court of Appeals for the 5th Circuit ruled that his filing was untimely because more than two years – the relevant statute of limitations – had passed since a state trial court first denied his 2014 request for DNA testing. Arguing that other circuits would not start the statute of limitations until the end of the appeals process, which in Reed’s case occurred in October 2017, Reed asks for the justices’ review. The case is Reed v. Goertz. (Last year, the court denied review in another case, Reed v. Texas, in which Justice Sonia Sotomayor, concurring in the denial, nonetheless noted a “pall of uncertainty over Reed’s conviction.”)

In January 2019, the Supreme Court denied a petition for certiorari from a football coach at a public high school who claimed that he lost his job because he prayed on the field after every game. At that time, four justices – Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – noted that they concurred in the decision because the factual record was too undeveloped to grant preliminary relief to the coach, not because they “necessarily agree[d] with the decision (much less the opinion) below.” Since then, the district court and U.S. Court of Appeals for the 9th Circuit have rejected the coach’s claims. In Kennedy v. Bremerton School District, the coach has filed another petition that asks the justices to review whether his conduct is private and protected by the First Amendment.

Finally, as Amy Howe reported for SCOTUSblog, the justices again face Texas’ abortion law, S.B. 8, which prohibits abortions beginning around the sixth week of pregnancy. On Sept. 1, the court rejected an initial request by abortion providers to block the law from going into effect. In Whole Woman’s Health v. Jackson, the providers have filed a petition for certiorari before judgment, asking the justices to hear the case before the U.S. Court of Appeals for the 5th Circuit has made its decision.

These and other petitions of the week are below:

Byrd v. Lamb
Issue: Whether, under either step of the Abbasi test, line-level federal officers may be sued for violating the Fourth Amendment.

Wyoming v. Mahaffy
Issue: Whether the Supreme Court’s rejection in Rodriguez v. United States of de minimis extensions to traffic stops abrogated or limited Arizona v. Johnson, thereby prohibiting officers from posing any unrelated questions even where the inquiry does not measurably extend the duration of the stop.

McCarthy v. Pelosi
Issue: Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.

Kennedy v. Bremerton School District
Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.

Nance v. Ward
Issues: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Reed v. Goertz
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Whole Woman’s Health v. Jackson
Issue: Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

Recommended Citation: Andrew Hamm, House voting, DNA testing, a coach’s praying, and abortion returning, SCOTUSblog (Oct. 1, 2021, 4:57 PM),