Relist (and Hold) Watch

By John Elwood
on Nov 10, 2011 at 3:13 pm

John Elwood reviews Monday’s relisted and held cases.

The dam finally broke for many of the cases that have been lingering among the relists for weeks on end. After a total of five relists, the Court summarily reversed in Bobby v. Dixon, 10-1540, agreeing with the Ohio Solicitor General that the Sixth Circuit had been insufficiently deferential to the Ohio Supreme Court in reviewing Archie Dixon’s murder conviction; we previewed that case here. And after a total of five relists (four since the Court called for a response), the Court saw fit to grant the petitions in Miller v. Alabama, 10-9646 and Jackson v. Hobbs, 10-9647. Those cases both raise the question whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder violates the Eighth Amendment. Good news as well for the petitioner in Magner v. Gallagher, 10-1032, involving whether disparate impact claims are cognizable under the Fair Housing Act, which also had been relisted five times (four since the Court called for a response). But the Court denied cert. in two relisted capital cases: Williams v. Roper, 11-5005, a habeas case that had been relisted twice, and Buck v. Thaler, 11-6391, a case involving the consideration of race at sentencing that had been relisted four times. As noted here, the Court’s denial of cert. in Buck prompted opinions from Justice Sotomayor and Justice Alito.

There are four(ish) new relists. First up is the SG’s petition in Astrue v. Capato, 11-159, involving what seems like an uncommon situation—a child conceived after the death of a biological parent (I hope I’m not giving away the surprise, but it’s the father). The case presents the question whether the child is precluded from receiving survivor benefits under the Social Security Act. But it is less uncommon than you’d think—there is a recognized circuit split on the issue, and there is at least one other case in the pipeline now that presents the same question. Second is Worthington v. Roper, 11-6224, a capital case out of the Missouri courts and the Eighth Circuit. Worthington raises a number of issues, but focuses his claims on the allegedly deficient performance of his trial counsel; the Court relisted this case for the November 22 Conference, skipping over the upcoming November 10 Conference, perhaps indicating that there is already a case on for the 22d that raises the same issue. Third, the Court also relisted in Branch Banking and Trust v. Gordon, 11-282, involving the enforceability of arbitration clauses in disputes over small potatoes. The Eleventh Circuit found the class-arbitration waiver clause unenforceable under Georgia law because the plaintiff’s claim would be too small to make arbitration worthwhile. But BB&T’s counsel seeks GVR relief in light of the Court’s decision last Term in AT&T Mobility Corp. v. Concepcion.

Finally, Hill v. United States, 11-5721, was relisted for the November 22 Conference, skipping the November 10 Conference. Hill involves whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date. The government’s brief in Hill agrees that the Court should grant cert. in the case. Although nominally a relist, the Court is basically holding Hill so that it can be considered alongside several other cases at that Conference that raise the same issue: Dorsey v. United States, 11-5683, Robinson v. United States, 11-5842, Fisher v. United States, 11-6096, Hyde v. United States, 11-6364, Lewis v. United States, 11-6464, and, Hernandez v. United States, 11-6602, at the November 22 Conference. I understand that at least one other petitioner’s counsel has argued that his case is a better vehicle than Hill. It seems a foregone conclusion to me that the Court will grant cert.; the only question is in which case.

The Court also has relisted once again in Medina v. Texas, 10-10838 (a capital case raising a litany of constitutional violations that has been relisted twice; see here for more). The rest of the relists are all state-on-top habeas cases alleging that courts of appeals gave insufficient deference to state-court decisions: Wetzel v. Lambert, 11-38 (Third Circuit, third relist), Cash v. Maxwell, 10-1548 (Ninth Circuit, fourth relist), and Hardy v. Cross, 11-74 (Seventh Circuit, fifth relist). The Court has requested and received the record in all three, so all are serious candidates for summary reversal (or a stemwinder of a dissent from denial of cert).

In the hold department, the Court appears to have finally “released” its hold on Stovall v. Miller, 10-851, which it looks like it’s been holding for Greene v. Fisher, 10-637, decided this week; after a long interregnum (it was last listed for the April 1 Conference), it’s on for the Conference today. Finally, Frederick v. Holder, 11-135, looks like a routine hold for Judulang v. Holder, 10-694. Just like Judulang, the case appears to present the question whether a lawful permanent resident who pleaded guilty to an offense that renders him excludable, and who does not depart and re-enter the United States afterward, can seek discretionary relief from removal under the Immigration and Nationality Act.

Readers of Relist Watch are nothing if not patriotic (or at least are beneficiaries of government holidays), so as both of you doubtless already know, Friday is Veterans Day. In light of the holiday, the Court will be holding this week’s Conference today, a day early. So stay tuned: another Relist Watch is just around the corner.

Thanks to Eric White for compiling and drafting this update.

Astrue v. Capato (relisted after the 11/4 Conference)

Docket: 11-159

Issue(s): Whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq.