RELIST WATCH

Status quo watch

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 made substantial progress at last week’s conference to reduce the accumulation of relisted cases. To begin with, the court granted review in five first-time relists: the challenge to the constitutionality of enforcing camping restrictions against the homeless; the government’s consular nonreviewability petition; Starbucks’ challenge to the National Labor Relations Board’s venti-sized powers to obtain injunctive relief; a petition addressing whether federal civil rights plaintiffs bringing claims in state court must first exhaust state administrative remedies; and a case asking whether a federal court that refers a lawsuit for arbitration can dismiss the suit rather than simply staying it.

But the court denied review without recorded dissent to two-time relist Alaska v. Alaska State Employees Association, involving whether the nation’s largest state is doing enough to protect the First Amendment rights of state employee union members. The rest of last installment’s relists are back for another go-round.

This week, the court will be considering 130 petitions and applications at this Friday’s conference. None of them will be first-time relists. That’s right – there are no new relists this week.

However, to redeem myself for making you read so far only to tell you that there are no new relists, let me say that I’m watching a bunch of repeatedly rescheduled petitions out of Florida that all raise the same question: whether the Sixth and 14th Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony. The defendants in these cases argue that when the Supreme Court held in Ramos v. Louisiana that the Sixth Amendment (as incorporated against the states by the 14th Amendment) guarantees criminal defendants the right to a unanimous jury, it meant a 12-person jury — not a six-person jury, which is all that Florida affords some felony defendants. Although the state public defender filed the petitions, former Solicitor General Seth Waxman became involved after the Supreme Court ordered the state to file a response, and is now counsel of record in all the cases. We’ll be watching those closely to see what the court might have in store for them.

That’s all for now. After this Friday’s conference, the court doesn’t have another conference scheduled until February 16. So you’ll have to get by for nearly a month with no Relist Watch. Hang in there!

New Relists

You’ve got to work on your reading comprehension.

Returning Relists 

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5 and Jan. 12 conferences; rescheduled before the Dec. 1 conference)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5 and Jan. 12 conferences; rescheduled before the Dec. 1 conference)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11 and Dec. 1 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5 and Jan. 12 conferences; rescheduled before the Dec. 1 conference)

Glossip v. Oklahoma, 22-7466 
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8, Jan. 5 and Jan. 12 conferences; rescheduled before the Dec. 1 conference) 

Speech First, Inc. v. Sands, 23-156 
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17, Dec. 8, Jan. 5 and Jan. 12 conferences; rescheduled before the Dec. 1 conference)

Coalition for TJ v. Fairfax County School Board, 23-170 
Issue: Whether the Fairfax County School Board violated the 14th Amendment’s equal protection clause when it overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology.
(rescheduled before the Dec. 1 conference; relisted after the Dec. 8, Jan. 5 and Jan. 12 conferences)

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5 and Jan. 12 conferences) 

Missouri Dept. of Corrections v. Finney, 23-203
Issues: (1) Whether the 14th Amendment prohibits relying on stereotypes about religious views to strike jurors; (2) whether a violation under Batson v. Kentucky is structural or is subject to harmless-error review; and (3) whether, in the context of jury selection, the 14th Amendment protects both religious status and religious belief, religious status only, or neither.
(rescheduled before the Nov. 3, Nov. 9, Nov. 17, Dec. 1 and Dec. 8 conferences; relisted after the Jan. 5 and Jan. 12 conferences) 

Compton v. Texas, 23-5682
Issues: (1) Whether a court’s comparison of generalizations about all the female prospective jurors who were struck by the prosecution with generalizations about the male jurors not struck by the prosecution, rather than a side-by-side analysis of individual jurors, disregards the basic equal protection principle that one discriminatory strike is too many; (2) whether Texas exercised its peremptory strikes in a prohibited discriminatory fashion.
(relisted after the Jan. 5 and Jan. 12 conferences)