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No new relists, but one likely grant in an international child custody case

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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.

A lot happened on the relist front over Thanksgiving as the Supreme Court has disposed of two of the remaining relists.

First, the parties settled the much-relisted rehearing petition in Arlene’s Flowers Inc. v. Washington, 19-333, involving a florist who argued that requiring her to create custom floral arrangements for a same-sex wedding would violate her religious beliefs. Thus, the court finally dismissed the case, which the court had relisted 11 times during the more than two years it was pending at the Supreme Court. But those hoping the court will address the same basic issue will have another chance soon in 303 Creative LLC v. Elenis, 21-476, involving a web designer. The court will almost certainly consider that case in late December or early January in time for the case to be granted in time for argument during the April sitting. The court also granted review in the only new relist from two weeks ago, Berger v. North Carolina State Conference of the NAACP, 21-248, addressing the ability of North Carolina legislators to intervene to defend the state’s voter-ID law from lawsuits under the Constitution and the Voting Rights Act. [Disclosure: My law firm, Arnold & Porter, is among the counsel to the NAACP in this case.]

There are no new relists right now among the 296 cases that are on for Friday’ conference. But there is another case that has strong chances of Supreme Court review that I thought I’d flag for you anyway: Golan v. Saada, 20-1034, an international child custody case. Under the Hague Convention on the Civil Aspects of International Child Abduction, children who are abducted must be returned to the country that is their habitual residence so that the courts there can resolve any custody disputes. The convention carves out some narrow exceptions to that general rule, including when there is a grave risk that returning the child would expose him or her to physical or psychological harm. The case presents the question whether, upon finding that return to the country of habitual residence would place a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

The court called for the views of the solicitor general in early April, and in late October, the office filed its brief. The government argues that the petition should be granted. In the government’s view, the convention allows, but does not require, a court to consider measures that could ameliorate a grave risk of harm when determining whether to refrain from ordering the return of a child under Article 13(b). The government argues that a flexible, discretionary approach to ameliorative measures is most consistent with the text of the convention, its implementing legislation, and the longstanding view of the State Department. The government notes that the courts of appeals are divided on how to address ameliorative measures, and it says that the mandatory rule adopted by the U.S. Court of Appeals for the 2nd Circuit in this case is likely to cause delays inconsistent with the convention’s focus on prompt resolution of return petitions, thus affecting the United States’ performance of its treaty obligations. The Supreme Court usually agreeswith the solicitor general’s recommendation to grant review, so the petitioner in this case should be getting good news soon.

Stay safe!

New Relists 

What are you looking here for? You need to focus.

Returning Relists

Knight v. Pennsylvania, 20-7805
Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
(relisted after the Oct. 29, Nov. 5, Nov. 12 and Nov. 19 conferences)

Holcombe v. Florida, 21-53
Issues: (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
(relisted after the Oct. 29, Nov. 5, Nov. 12 and Nov. 19 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, Nov. 12 and Nov. 19 conferences)

Recommended Citation: John Elwood, No new relists, but one likely grant in an international child custody case, SCOTUSblog (Dec. 2, 2021, 9:04 AM),