RELIST WATCH

Déjà vu all over again

By John Elwood

on Mar 3, 2026

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 is continuing to chip away at its relist backlog, though not exactly at warp speed. The justices denied review in three such cases on Monday. Most notably, they closed the book (for now) on the remaining Second Amendment challenges to the federal ban on felons possessing firearms. In late January, the court denied review in 76 of the 78 petitions then pending that raised that issue. Monday, it disposed of the final two holdouts – Vincent v. Bondi and Thompson v. United States – without comment. For those keeping score at home, that makes it a clean sweep.

The court also denied review in Johnson v. High Desert State Prison, which asked whether indigent prisoners pursuing a joint civil action may divide the $350 filing fee among themselves. Justice Elena Kagan noted that she would have granted review, and Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented from the denial. They argued that prohibiting fee-splitting is both legally incorrect and functionally shuts the courthouse doors to prisoners who typically earn between 13 cents and $1.30 per hour. It takes only four votes to grant review; it’s noteworthy that none of the remaining six justices was willing to provide the fourth vote as a courtesy.

There is just one new relist this week, but it has a distinctly familiar feel. Kendrick Jarrell Beaird was spotted pointing his Glock pistol at someone at an abandoned fast-food restaurant. That’s never a good idea, particularly when, like Beaird, you’re a former felon and prohibited from possessing firearms. Beaird was convicted and because his Glock had a full 17-round magazine, his sentence was enhanced because the U.S. Sentencing Guidelines increase the base offense level if the firearm is capable of accepting a “large capacity magazine,” and the Sentencing Commission’s official commentary defines that term to include magazines holding more than 15 rounds.

In Beaird v. United States, petitioner presses three claims. First, he raises the now-standard argument that the felon-in-possession statute violates the Second Amendment. Because his prior convictions include violent offenses, he cannot credibly pursue the more sympathetic as-applied-to-nonviolent-felons theory; instead, he must argue the statute is facially unconstitutional (that is, the statute is unconstitutional across the board). Given Monday’s denials in Vincent and Thompson, that argument appears to face long odds.

Second, and more interestingly, Beaird challenges the Sentencing Guidelines enhancement. He contends that the Supreme Court’s 2019 decision in Kisor v. Wilkie – which somewhat curtailed deference to agencies’ interpretations of their own regulations – undermines the earlier case of Stinson v. United States, which held that the Sentencing Guidelines commentary controls unless it is “plainly erroneous or inconsistent” with the text. The courts of appeals remain divided on how much Kisor trims Stinson, though many – including the U.S. Courts of Appeals for the 3rd and 9th Circuits – have concluded that the “large capacity magazine” commentary survives. That broader deference question is currently pending before the court in five-time relist Poore v. United States. If the court is inclined to say anything further about Stinson’s vitality, Beaird could be a way to do so – but because this particular commentary may satisfy Kisor, it would likely ride in tandem with (or trail behind) Poore.

Finally, Beaird renews the perennial commerce clause argument: that Congress lacks authority to criminalize possession of a firearm based solely on the fact that it crossed state lines at some point in the past. He urges the court to reconsider precedents approving that minimal nexus in light of more recent federalism decisions that require a showing of an affect on commerce. The court has repeatedly declined similar invitations, and is likely to do so here.

The government opposes certiorari across the board, emphasizing the court’s recent denials on each issue and arguing that Beaird is a poor vehicle in any event (perhaps particularly because he reportedly told police he was trying to sell the gun, which tends to strengthen the commerce nexus).

That’s all for this week!

New Relists

Beaird v. United States, 25-5343

Issues: (1) Whether 18 U.S.C. § 922(g)(1) comports with the Second Amendment; (2) whether Stinson v. United States still accurately state the level of deference due to the Commentary of the Federal Sentencing Guidelines; and (3) whether 18 U.S.C. § 922(g) permits conviction for the possession of any firearm that has ever crossed state lines at any time in the indefinite past, and, if so, whether it is facially unconstitutional.

Returning Relists

Smith v. Scott, 24-1099

Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.

(Relisted after the Sept. 29, Oct. 10, Oct. 17, Nov. 7, Nov. 14, Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20 and Feb. 27 conferences.)

Foote v. Ludlow School Committee, 25-77

Issue: Whether a public school violates parents’ constitutional rights when, without parental knowledge or consent, the school encourages a student to transition to a new “gender” or participates in that process.

(Relisted after the Nov. 21, Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20 and Feb. 27 conferences.)

Fields v. Plappert, 23-6912

Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.

(Relisted after the Dec. 5, Dec. 12, Jan. 9 and Jan. 16 conferences; now being held for consideration of response to Fields’ rehearing petition.)

Reed v. Goertz, 24-1268

Issue: Whether Article 64 of the Texas Code of Criminal Procedure, as authoritatively construed by the Texas Court of Criminal Appeals, violates due process by arbitrarily denying prisoners access to postconviction DNA testing, rendering illusory prisoners’ state-created right to prove their innocence through newly discovered evidence.