RELIST WATCH

The justices return — and so do the relists

By John Elwood

on Oct 10, 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.

Summer has ended at last. And while the justices (and SCOTUSblog) didn’t get much vacation with all the action on the emergency docket, I at least had a few blissfully relist-free months. That ended with a vengeance. On Friday of last week, the Supreme Court granted review in five cases from the end-of-summer “long conference.” And then on Monday, the court relisted 17 long conference cases for consideration a second time at this week’s conference. They involve such a wide variety of subjects that while I treat each case summarily, this post sure doesn’t feel summary.

Culture war

While summer is over, some of this week’s relists threaten to keep temperatures high. However (in)accurate, these cases are sometimes known as “culture war” cases, an echo of Justice Antonin Scalia’s reference to “Kulturkampf” in his 1996 Romer v. Evans dissent.

Parental rights – particularly when dealing with hot-button cultural issues like gender identity and sexual orientation – have been on the court’s radar in recent terms. Lee v. Poudre School District R-1 represents another possible foray into the area. Jonathan and Erin Lee and Nicholas and Lennaea Jurich, parents of current or former district students, ask the Supreme Court to decide whether public schools can keep information about a child’s gender identity secret from parents – or, as they put it, whether schools can “discard the presumption that fit parents act in the best interests of their children.” According to the parents, teachers at the district invited their children to a meeting of an “art club” that was actually a gender identity support group where the Lee and Jurich children identified themselves as transgender and teachers told the children they needn’t inform their parents if they weren’t ready.

The parents sued, arguing that the district’s gender-support policies and staff conduct violated their 14th Amendment right to direct their children’s upbringing. But the U.S. Court of Appeals for the 10th Circuit held that the parents had failed to adequately plead that the challenged conduct was attributable to the school district, with one judge writing separately to express sympathy for the merits of the parents’ claims.

In Does 1-2 v. Hochul, a battalion of pseudonymous healthcare workers – more than 1,000 Johns, Janes, Jacks, and Joans – challenge the implementation of New York’s now-repealed COVID-19 vaccine mandate. While the statewide mandate included some exceptions (like a health exception), it included no exemption for religious belief. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in the terms, conditions, or privileges of employment because of religion (including all aspects of religious observance and practice), and an employer must “reasonably accommodate” employees’ religious observance or practice unless the employer demonstrates that it is unable to do so “without undue hardship on the conduct of the employer’s business.”

The U.S. Court of Appeals for the 2nd Circuit held that employers had proven an “undue hardship” because granting a religious exemption would have required private employers to violate the state’s vaccine regulation and exposed them to “financial penalties or a suspension or revocation of their operating licenses.”

The Does argue that the 2nd Circuit flipped the supremacy clause on its head by allowing hospitals to ignore federal religious-accommodation rules because state health regulations barred religious exemptions. With the vaccination mandate repealed since 2023, the 2nd Circuit held the case was moot as to state officials. The private hospitals argue that the question the Does ask the court to decide is not actually presented, because hospitals permitted (consistent with state law) various kinds of accommodations to avoid the vaccine requirement.

The next case could fall into several categories, but because “Section 230” is a term that routinely trends on social media, I’ve placed this case here. Doe v. Grindr Inc. presents another opportunity for the Supreme Court to consider the meaning and application of Section 230 of the Communications Decency Act, which prevents publishers from being held liable for third-party content. The plaintiff in the case, John Doe, is a minor who went onto the Grindr app – despite its adults-only policy – and claims to have been sexually assaulted by four men over four days whom he met through it. He sued the platform for defective design, failure to warn, and facilitating sex trafficking, but the U.S. Court of Appeals for the 9th Circuit ordered his claims dismissed under Section 230’s immunity shield as a publisher of third-party content.

Doe urges the justices to clarify whether CDA Section 230 immunizes apps from liability for their product flaws and activities like geolocation extraction, algorithmic recommendations, and lax age verification that allegedly enable child exploitation. Grindr’s opposition insists that Doe’s claims boil down to third-party content moderation and neutral tools, with no real division among the courts of appeals warranting review.

Potential blockbusters

Thomas v. Humboldt County, California is a potential blockbuster wrapped in an unlikely package – probably, a plain, brown wrapper. Corrine Morgan Thomas and a group of other Northern California property owners have been hit by hefty fines for alleged code violations under Humboldt County’s administrative cannabis enforcement regime. They argue that the county’s administrative hearings deprive them of a jury. Specifically, they contend that the Supreme Court’s 1916 decision Minneapolis & St. Louis Railroad Co. v. Bombolis, which held that the Seventh Amendment – concerning jury trials – doesn’t bind the states, is an outdated relic from the era before the court began incorporating, or applying, the Bill of Rights against the states. “Friends of the court” who have filed briefs supporting the property owners include not only the Cato Institute and the Buckeye Institute, but also two founders of the Federalist Society, professors Steven Calabresi and Gary Lawson.

The county counters that the issue isn’t ripe for the Supreme Court’s review because Thomas won a partial victory on appeal and the case has been remanded for further proceedings, and that its administrative tribunals are appropriately resolving cases. The county argues that Bombolis remains good law and that respect for longstanding precedent and federalism counsel in favor of a denial. It further argues that even if the Seventh Amendment were incorporated against the states, the property owners’ actions would not warrant jury trials.

Civil rights litigation

The city of New Orleans has long been subject to a federal court order requiring it to address unconstitutional conditions in its jail by providing appropriate housing to prisoners with mental-health needs. The city did not appeal that order. It sought to address its legal obligation by building a new annex, which at this point is over 68% complete. Later, the city tried to win relief from the order requiring it to provide that housing by invoking Federal Rule of Civil Procedure 60(b)(5) on the ground that the order requiring the new facility was “no longer equitable.” The district court denied relief, and the U.S. Court of Appeals for the 5th Circuit affirmed.

Then Susan Hutson, the newly elected sheriff of Orleans Parish, moved for relief under a provision of the Prison Litigation Reform Act, 18 U.S.C. § 3626, that allows for termination of prospective relief in prison-condition cases within two years of the order being entered unless “prospective relief remains necessary to correct a current and ongoing violation of the Federal right.” The city argued that the original order was entered improperly, but did not dispute that prospective relief remained necessary.

The district court denied the motion, calling it “yet another thinly-veiled attempt to end-run the original decision not to appeal” the original order imposing the obligation to provide such housing. A divided panel of the 5th Circuit affirmed, holding that the city had not filed a proper motion to terminate under Section 3626. The full court declined to rehear the case by an 11-to-6 vote.

In Hutson v. United States, the Supreme Court is asked to clarify the meaning of Section 3626. Hutson argues that under the Prison Litigation Reform Act, she does not have “any affirmative burden beyond demonstrating that the requisite amount of time has passed.” In opposition, the United States argues that the city’s filing was a Section 3626 motion in name only, because it really sought to belatedly relitigate the validity of the original, never-appealed order, rather than contesting whether the order continued to be necessary. Meanwhile, the prisoners who originally challenged the unconstitutional conditions argue that Hutson has failed to preserve the question presented, and that the case is a poor vehicle for resolving the claimed question.

Arbitration

Arbitration is a staple of the Supreme Court’s business docket. The Federal Arbitration Act establishes a regime for parties to resolve disputes through binding arbitration. But it exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Just last year, the Supreme Court held that workers distributing baked goods for Flower Foods – one of the world’s largest bread-makers and purveyors of Wonder Bread and other carb-based icons – “need not work in the transportation industry to fall within the exemption from the FAA” so long as they “at least play a direct and ‘necessary role in the free flow of goods’ across borders.”

The company is now back in Flower Foods, Inc. v. Brock, asking the Supreme Court to decide whether a driver who never leaves his home state – but who delivers bread that crossed state lines – is “engaged in interstate commerce” and thus exempt from arbitration under the Federal Arbitration Act. Flower Foods says no: their distributors are local haulers of gluten, not latter-day seamen.

The 10th Circuit disagreed, joining the 9th Circuit and the U.S. Court of Appeals for the 1st Circuit in saying that what governs the test is the goods’ journey, not the worker’s – an interpretation that, Flower Foods warns, could turn grocery clerks and stockers into “interstate commerce” participants. It’s a great slice-of-life case for fans of the court’s business docket, which increasingly resembles Melba toast.

Criminal law

Hunter v. United States and Chaney v. United States invite the Supreme Court to tackle a question that is increasingly relevant given over 90% of convictions arise from guilty pleas: when a defendant pleads guilty and signs a plea agreement with the government that waives the right to appeal, what kinds of appeals are still permitted?

In Garza v. Idaho, the Supreme Court recognized that “no appeal waiver serves as an absolute bar to all appellate claims,” but so far the court has provided no guidance on “what particular exceptions [to appeal waivers] may be required.” The 5th Circuit (which decided Hunter and Chaney’s claims), as well as the 10th Circuit and the U.S. Court of Appeals for the 6th and 11th Circuits, hold that only two exceptions to appeal waivers exist: for ineffective counsel and sentences above the statutory maximum. Other courts of appeals (notably, the 1st and 9th Circuits, as well as the U.S. Courts of Appeals for the 2nd and 4th Circuits) permit defendants who sign general appeal waivers to raise a broader range of constitutional challenges.

Munson Hunter is a Texas man who pleaded guilty to fraud. At sentencing, Hunter objected to a proposed special condition of supervised release that would have required him to “take all mental health medications that are prescribed by [his] treating physician,” but the district judge included it as a mandatory term anyway. Devin Chaney pleaded guilty to a pair of New Orleans robberies and agreed not to appeal, only to later discover that a misapplied “career-offender” enhancement may have tacked over six extra years in prison onto his sentence. Chaney argued for a “miscarriage of justice” exception.

In both cases, the 5th Circuit said the defendants could not appeal, enforcing this waiver as strictly as if it were a gym membership contract. The government contends that a deal’s a deal, and a waiver is a waiver. This issue strikes me as as one of the best candidates for a grant.

In Pitts v. Mississippi, the court is asked to decide under what circumstances a criminal defendant’s Sixth Amendment right “to be confronted with the witnesses against him” permits limitations on the defendant seeing the witness. Jeffrey Clyde Pitts was convicted of sexually abusing his 4-year-old daughter after a trial at which the court let the child testify behind a screen – so the jury and judge could see her, and her father could see her on a video screen, but she couldn’t see her father. The trial court allowed this without first making a formal finding that seeing her father would cause her trauma.

Pitts argues this outcome flatly violates Coy v. Iowa and Maryland v. Craig, which, according to him, permit courts to shield child witnesses only if the trial court makes a case-specific finding that “the departure is necessary to prevent trauma to the child.” Mississippi counters that the procedure preserved the “essence” of confrontation: Pitts could hear and watch his daughter via Zoom, she testified under oath and was cross-examined, and the state has a strong interest in protecting young victims. The state also contends the trial judge implicitly made the requisite trauma finding and that any error was harmless given the overwhelming evidence against Pitts.

Miscellany

Quentin Veneno is an enrolled member of the Jicarilla Apache Nation. He was convicted in federal court of domestic assault by a habitual offender against another tribe member on tribal land and sentenced to prison. In Veneno v. United States, he contends that the district court violated his Sixth Amendment right to a public trial when it conducted much of jury selection for his COVID-era trial without the public present (though they had audio access, and later video access to jury selection) and without first pondering alternatives like reserving gallery seats. The 10th Circuit affirmed, applying plain-error review because Veneno said at the time that he had no objection.

Veneno now urges the justices to clarify whether judges have a responsibility on their own initiative to consider closure alternatives besides audio/video streaming, and whether he had an adequate opportunity to object. In addition to his fact-intensive questions, Veneno raises a more categorial, swing-for-the-fences question: he asks the Supreme Court to overrule its 1886 precedent United States v. Kagama by holding that Congress lacks plenary power to criminalize intra-tribal Indian conduct on reservations, which he argues should be resolved by the tribes themselves.

This next case, Little v. United States, may be as diminutive as its name as a legal matter, but it looms large as a sign of the times. James Little pleaded guilty to a single petty offense arising from the events at the U.S. Capitol on Jan. 6, 2021. But his initial sentence of 60 days in prison, along with three years on probation, was vacated by a divided U.S. Court of Appeals for the District of Columbia Circuit for impermissibly imposing both imprisonment and probation, only for Little to find himself resentenced to 150 days of imprisonment with partial credit after serving the original term. This prompted a second appeal, where the panel unanimously affirmed despite a double jeopardy claim from Little.

Before his certiorari petition could delve into the thorny double jeopardy issue, however, the president issued a blanket pardon for J6 defendants. This has necessitated dismissals of pending cases and caused the government to move under Federal Rule of Criminal Procedure 48(a) to toss Little’s charging document with prejudice. Accordingly, the United States is asking the court “to grant the petition, vacate the judgment below, and remand to the court of appeals.”

Lost causes?

As a statistical matter, the fact that a cert petition has been relisted is usually a sign at least one justice is interested in the case, and the odds of Supreme Court review increase after a relist. On the other hand, the Supreme Court hasn’t granted review in a case for decades without having a respondent’s brief on file, so the fact that a case has been considered at conference without the Supreme Court asking the respondent to file a responsive pleading (“calling for a response”) is usually a sign that a case is on a glide path for denial – particularly because it takes only a single justice to require a party to file an opposition.

So what is a Supreme Court nerd to make of a relisted case where the respondent waived its right to file a responsive pleading, and still the Supreme Court is considering the case for the second conference in a row? Remarkably, we have two such cases this week. Both are from California.

California Stem Cell Treatment Center, Inc. v. United States. The California Stem Cell Treatment Center and the Cell Surgical Network are two California-licensed entities that claim to have a “technology to produce a solution rich with [a patient’s] own stem cells” that they say can alleviate dozens of medical conditions, from Alzheimer’s to erectile dysfunction. They remove tissue from a patient’s body, process it, and then administer the substance to the patient; sometimes, a portion is saved for later administration.

The federal government brought an enforcement action, saying the groups were manufacturing “drugs” without authorization. A 9th Circuit panel agreed; two judges separately concluded that the process did not come within a regulatory “same surgical procedure” exception for human cells and tissues.

The groups now seek review, asking the Supreme Court to decide whether the FDA can regulate the processing of human cells for reintroduction into the same person’s body as a “drug.” They are supported by the Goldwater Institute and other advocates.

Peters v. Cohen. California, like several states, has an “unclaimed property fund” that holds unclaimed property in trust for the owners; if the owners are not found within a statutorily specified period, that property goes to the state itself. Jan Peters claims that the California Unclaimed Property Law has morphed into a state-sanctioned treasure hunt where the state keeps the loot. He argues that California’s practice of liquidating unclaimed property without meaningful notice or timely compensation flouts the due process and takings clauses of the Constitution. A friend of the court warns that other states, like Ohio, are getting in on the act – using dormant assets to fund things like private sports stadiums.

Years ago, another relisted case raised a similar issue. It was relisted seven times before being denied. Justice Samuel Alito, joined by Justice Clarence Thomas, filed an opinion bemoaning the fact that “many States appear to be doing less and less to meet their constitutional obligation to provide adequate notice before escheating private property” and that the “important question” of what procedures were appropriate “may merit review in a future case.” They (or others) may think it’s time to reiterate those concerns.

Frequent fliers

Longtime readers of Relist Watch are familiar with certain types of cases that routinely are featured in this space. States arguing that law-enforcement officers should be granted qualified immunity against misconduct claims, or arguing that a court of appeals improperly granted a prisoner habeas corpus relief, are two of the most common kinds of cases. As it turns out, we have one of each this week.

First we have Smith v. Scott, in which a group of Las Vegas police officers argue that they were improperly denied qualified immunity for restraining a paranoid, hallucinating man who later died after a 95-second struggle that was all caught on body cam. The 9th Circuit held that the officers used unconstitutionally excessive force. The officers warn that the ruling leaves officers guessing whether even briefly restraining a struggling suspect is lawful – which could be dangerous in tense mental-health crises.

Next up is Klein v. Martin. Charles Brandon Martin was convicted of attempted murder in Maryland state court after prosecutors said that he’d turned a Gatorade bottle into a silencer for a gun and used it to shoot someone. But years later, it turned out that the state had withheld a forensic computer report showing Martin had not researched silencers online (though a witness testified that he had done so). The 4th Circuit held that the state had violated Brady v. Maryland by withholding what the court considered to be material exculpatory evidence. The state of Maryland says that the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act by being insufficiently deferential to the state court’s conclusion that the evidence was immaterial.

The Feres doctrine is another common subject of relists. Critics on and off the bench have long disparaged the so-called “Feres doctrine,” which construes the Federal Tort Claims Act’s waiver of sovereign immunity not to extend to injuries that “arise out of or are in the course of activity incident” to a person’s military service. Thomas is the doctrine’s most outspoken critic, having condemned it as “heartily deserv[ing] the ‘widespread, almost universal criticism’ it has received.”

In Beck v. United States, the Supreme Court is asked – yet again – to decide whether the much-maligned Feres doctrine should finally be put out to pasture. The case arises from the death of Staff Sergeant Cameron Beck, who was killed by a distracted driver on his Air Force base while traveling home during a lunch break. So perhaps the court will finally overrule or limit Feres or (more probably) we might get a dissent from denial of certiorari.

A final group of cases that frequently appear in Relist Watch are those alleging the prosecution struck potential jurors from juries because of their race in violation of Batson v. Kentucky. These cases typically get the attention of the Supreme Court when they arise in capital murder cases (where the stakes are at their highest). But they are frequently so fact-intensive that it’s hard to know the strengths of the prisoner’s claim without taking a deep dive into the record.

Pitchford v. Cain is this week’s example. Terry Pitchford was convicted of murder at 18 for his role in a botched robbery (after his accomplice fired the fatal shots), and landed on death row. During jury selection, prosecutor Doug Evans (the same prosecutor as in Flowers v. Mississippi) struck four Black potential jurors. That prompted Batson challenges that the state trial court overruled without probing the pretext for the jurors being struck, and the Mississippi Supreme Court held that a defendant waives (technically, forfeits) his Batson claim by failing to specifically argue before the trial court that the state’s proffered justifications for the strikes were pretextual.

While the federal district court later granted Pitchford habeas relief, the 5th Circuit reversed, holding that state courts’ application of Batson was reasonable. Pitchford urges the justices to decide whether clearly established law demands reversal when state courts fail to consider all circumstances bearing on racial animus under Batson, if Mississippi’s waiver doctrine contravenes Batson, and whether deeming the claim waived here was an unreasonable factual determination. Three of the excluded jurors from Pitchford’s case have filed a “friend of the court” brief challenging Evans’ proposed explanations for striking them. As I say, Batson cases are very fact-intensive, so we’ll have to wait to see if this case has legs.

That’s all for this week. Let’s hope that our next installment is less interesting – or at least shorter.

New Relists

Flower Foods, Inc. v. Brock, 24-935

Issue: Whether workers who deliver locally goods that travel in interstate commerce — but who do not transport the goods across borders nor interact with vehicles that cross borders — are “transportation workers” “engaged in foreign or interstate commerce” for purposes of the exemption in Section 1 of the Federal Arbitration Act.