RELIST WATCH

Compassionate release, election rules, and procedural puzzles

By John Elwood

on Jun 4, 2025

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.

The Supreme Court continues its blistering pace sorting through relisted cases, resolving eight this week. The court granted review in four relisted cases discussed in previous installments, including two cases addressing the defenses government contractors can bring against tort actions, a case involving whether candidates and voters have standing to challenge an Illinois law requiring the counting of ballots received after election day, and a case addressing whether police may enter a house without a warrant when they have reasonable belief that an occupant may commit suicide.

But the court denied review in a 14-time relist involving a constitutional challenge to Maryland’s assault-weapon ban, over the dissent of Justice Clarence Thomas. Justice Brett Kavanaugh wrote an opinion respecting the denial of cert, where he opined that the challengers have a “strong argument” such laws are invalid, but he noted that other courts were currently considering similar issues and said that “this Court should and presumably will address” the validity of such assault-weapon bans “in the next Term or two.” The court similarly denied review in another 14-time relist involving a constitutional ban on the possession of high-capacity gun magazines, with Justices Thomas, Samuel Alito, and Neil Gorsuch noting that they would grant the petition for certiorari. The court also denied review in a four-time relist asking whether the “continuing violations” doctrine applies to claims of patterns or practices of racial discrimination. Justice Ketanji Brown Jackson, joined by Justic Sonia Sotomayor, dissented from the denial of cert. Lastly, the court denied review without comment in a two-time relist that sought to identify the circumstances under which voters could continue to challenge a ballot deadline even after the relevant election had passed.

Phew! I’m already worn out, and we haven’t even gotten to this week’s new relists. There are just 85 petitions and applications scheduled for this week’s conference, but five of them are first-time relists.

More compassionate release cases

The court only recently took a case involving the so-called “compassionate release” sentencing provision of 2018’s First Step Act, which allows a federal prisoner to go back to the sentencing court and seek a reduced sentence on the grounds that “extraordinary and compelling reasons warrant such a reduction.” But this week, the court has relisted two cases raising related questions.

Johnnie Markel Carter is serving a 70-year sentence for armed bank robberies and multiple firearm convictions, with 57 years of that sentence representing consecutive terms for repeatedly using firearms under 18 U.S.C. § 924(c). At the time, Section 924(c) required that firearms sentences run consecutively to one another, so defendants finishing up crime sprees could find that prison time added up quickly. The First Step Act modified the law to make consecutive sentences more rare (basically, they would only be consecutive if you reoffended after being convicted of using a gun during a crime) – but the change was made only prospectively, so it did not help those sentenced under the old law.

Enter the Sentencing Commission, which last year added Section 1B1.13(b)(6) to the Sentencing Guidelines, permitting courts to consider such nonretroactive changes in deciding whether “extraordinary and compelling reasons” exist to reduce a sentence. The district court found Carter deserved a reduced sentence – but it said its hands were tied by the governing precedent of the U.S. Court of Appeals for the 3rd Circuit, United States v. Andrews, which held that nonretroactive changes can’t be “extraordinary and compelling” and that the Sentencing Commission exceeded its authority in Section 1B1.13(b)(6) by saying otherwise. Similarly, Daniel Rutherford is serving a 42.5-year sentence for two armed robberies of the same chiropractor’s office just a few days apart. In United States v. Rutherford, the 3rd Circuit, again citing Andrews, said no dice.

Both Carter and Rutherford now seek review, arguing that the Sentencing Commission validly authorized courts to consider those changes in its new guidance. Both contend that the U.S. Courts of Appeals for the 1st, 4th, 9th, and 10th Circuits allow courts to consider nonretroactive sentencing changes as part of an “extraordinary and compelling” analysis, while the 3rd, 5th, 6th, 7th, 8th, and D.C. Circuits do not.

There are two interesting wrinkles to this case. First, the Department of Justice is arguing that the U.S. Sentencing Commission exceeded its authority in allowing courts to consider nonretroactive sentencing changes as “extraordinary and compelling” circumstances. Second, the government agrees that “the courts of appeals have arrived at irreconcilable legal positions on the issue” and that certiorari is warranted. DOJ says Carter “cleanly presents” the question and is the better vehicle than a similar petition in Rutherford, which it says involves messier procedural issues. Plus, the district judge in Carter’s case openly stated he would have reduced the sentence but for circuit precedent. Rutherford argues that his case is actually the better vehicle, pointing to procedural issues in Carter.

Cert seems all but inevitable – the only issue is which case presents the better vehicle. Given the relatively light number of cases granted so far for next term, why not both?

Another state election case

The court only recently took a case challenging a state’s decision to count certain ballots, but it is already taking a close look at another one.

The elections and electors clauses of the U.S. Constitution vest the power to set federal election rules in the legislature of each state. The Pennsylvania General Assembly enacted a law providing that election officials “shall not” count an individual’s provisional ballot if they “timely received” a mail ballot cast by that person. Republican National Committee v. Genser asks whether the Pennsylvania Supreme Court’s allowance of provisional ballots from voters whose mail ballots were invalidated (due to missing secrecy envelopes) violates the elections and electors clauses.

The Republican National Committee, Republican Party of Pennsylvania, and Butler County Board of Elections cry foul, arguing this judicial rewrite usurps the state legislature’s constitutional authority under Moore v. Harper, which warned state courts against “transgress[ing] the ordinary bounds of judicial review.” Two voters and the Pennsylvania Democratic Party defend the ruling as plain vanilla statutory interpretation, aligning with most Pennsylvania counties’ practices and the state’s Statutory Construction Act.

Alito, Thomas, and Gorsuch already signaled the case’s “considerable importance” back when the court earlier denied the RNC’s stay application. So the case is obviously getting a close look.

Another federal removal case

The court only recently took a case involving the removal of a case from state to federal court, but it is already taking a close look at another one. (OK, the cases aren’t similar at all, but you can’t blame me for trying to drag that theme out a little longer.)

In Chevron U.S.A. Inc. v. Plaquemines Parish, energy giants Chevron and ExxonMobil and a host of smaller producers seek review of a decision of the U.S. Court of Appeals for the 5th Circuit that stopped their latest effort to obtain a federal forum for cases brought in Louisiana state court, where six coastal parishes brought a group of sprawling coastal restoration suits. The companies had removed the suits to federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), citing their World War II-era contracts to supply the federal government with aviation fuel derived from the crude oil their predecessors extracted along the Louisiana coast. By a divided vote, a 5th Circuit panel agreedthat the companies had “acted under” federal officers during the war, but balked at finding that the oil extraction activity “related to” the wartime contracts. Judge Andrew Oldham dissented, warning that the majority had revived a discredited “causal nexus” test and disregarded Congress’s 2011 expansion of the statute’s scope. The full court then denied rehearing by a one-vote margin.

Chevron and Exxon insist the panel opinion squarely conflicts with rulings from six other circuits that have taken a broader view of what it means to “relate to” federal direction. In contrast, Louisiana and the parishes respond with a familiar refrain: there’s no split, just fact-bound disagreement over the 80-year-old oil wells. They argue the companies were producing oil long before the war and that the government contracts never directed the specific extraction activities now at issue. With a razor-thin denial of rehearing en banc and multiple amici (including the Chamber of Commerce and retired military officers) lining up behind cert, this one has some high-octane ingredients for review. We’ll soon see whether they hit the ignition – or if Chevron and Exxon’s cert bid fizzles like their unsuccessful prior attempt two terms ago.

Jurisdictional objections and unreasonable delay

In geologic terms, the court only recently (that is, in 2024) took a case involving the Federal Rule of Civil Procedure 60, involving when courts can grant relief from a judgment or order. But the issue is back again.

This week’s last new relist is Coney Island Auto Parts Unlimited Inc. v. Burton, a quirky procedural tangle that pits a long-dormant default judgment against the ticking clock of Rule 60. Coney Island Auto, a Brooklyn auto parts company, got hit with a default judgment in 2015 by a Tennessee bankruptcy court for unpaid invoices from Vista-Pro Automotive’s Chapter 7 proceedings. Claiming defective service (the summons wasn’t addressed to an officer, as required by Bankruptcy Rule 7004(b)(3)), Coney Island waited until 2021 to move to vacate the judgment as void for lack of personal jurisdiction. The U.S. Court of Appeals for the 6th Circuit acknowledged service was likely deficient, but a majority still held over dissent that the motion was untimely under Rule 60(c)(1)’s requirement that all motions – even those challenging void judgments – be filed within a “reasonable time.”

Coney Island says that the 6th Circuit is the “sole outlier” among the circuits, which – according to petitioner – allow Rule 60(b)(4) motions to vacate void judgments at any time. The trustee, however, fires back that no such clean split exists and that even those circuits cited by Coney Island occasionally reject stale motions when delay is egregious. If you’ve got a soft spot for procedural esoterica – and you likely do as you’ve gotten all the way to the end of Relist Watch– keep an eye on this one.

That’s all for this week. Tune in Monday to find out whether the court will be adding any cases to the fall argument calendar.

New Relists

Republican National Committee v. Genser, 24-786

Issue: (1) What legal standard determines whether a state court”s interpretation of state election law exceeds the bounds of ordinary judicial review and therefore violates the elections and electors clauses of the federal Constitution; and (2) whether the Pennsylvania Supreme Court exceeded the bounds of ordinary judicial review and thereby usurped the Pennsylvania General Assembly”s plenary authority to prescribe “[t]he Times, Places, and Manner” for congressional elections and broad power to “direct” the “Manner” for appointing electors for president and vice president under those clauses, when it struck down a state statute directing that election officials “shall not” count an individual”s provisional ballot if they “timely received” a mail ballot cast by that person.