Relist Watch

John Elwood briefly reviews Monday’s relists.

There are so many interesting relists to discuss this week that I’m not even going to try. Who has time to discuss 19 new relists? After all, I’m busy preparing for other pressing commitments, so it’s time once again for the affordable luxury of Relist Watch Select^TM.

As some internet rando put it, “[t]his week’s relists involve the most comically high-profile group of issues I think I’ve ever seen. If they actually granted in all those cases, everyone’s heads would explode.” Allowing for some forgivable hyperbole when you consider the source, the guy has a point: This week’s relists raise some crazy-interesting issues.

For starters, the court has relisted a case sufficiently famous that it can be widely identified by just the petitioner’s name, Arlene’s Flowers. The case is a follow-on to the similarly famous Masterpiece Cakeshop, involving a state’s ability to compel people with religious objections to same-sex marriage to use their artistic talents for such ceremonies. And that’s just the beginning of the high-profile free exercise cases. The court has relisted two cases asking whether it should revisit its holding in Employment Division v. Smith that the free exercise clause does not require religious exemptions from laws that are neutral and generally applicable. If you don’t like either of those, there’s a slew of other free exercise cases. And if the First Amendment’s religion clauses don’t float your boat, there are cases about compelled disclosure of donors that involve associational claims. Some even involve religious organizations.

Then there are the administrative law cases. Interested in overruling Chevron U.S.A. v. Natural Resources Defense Council? Check. How about overruling National Cable & Telecommunications Association v. Brand X Internet Services? We have you covered. Add in a couple of personal-jurisdiction cases brought by America’s third-oldest car company. If anyone thought all those were too dull, we have a couple of cases involving the Affordable Care Act’s contraceptive mandate. And a couple of cases involving so-called “faithless electors” who vote in the Electoral College contrary to the popular vote in their state. Then there’s a grand jury secrecy case. And a case involving foreign official immunity that requires a [Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioners in this case.] And a double jeopardy case. And an immigration case filed by the Trump administration. Oh sure, in all the commotion, we’ve probably forgotten a case or three. But there are so many interesting relists this week, it will be impossible to prove.

That’s all for this week. Next week’s list may be even more summary, since I’ll be on the road.

New Relists

Patterson v. Walgreen Co., 18-349
Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled. CVSG: 12/9/2019.
(relisted after the January 10 conference)

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921
Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability. CVSG: 12/6/2019.
(relisted after the January 10 conference)

Ricks v. Idaho Contractors Board, 19-66
Issue: Whether the Supreme Court should revisit its holding in Employment Division v. Smith that the free exercise clause generally requires no religious exemptions from laws that are neutral and generally applicable.
(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 conference)

Fulton v. City of Philadelphia, 19-123
Issue: Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster-care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 conference)

Mutond v. Lewis, 19-185
[Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is counsel to the petitioners in this case.]
Issues: (1) Whether a plaintiff can preclude conduct-based immunity for foreign government officials merely by suing them in their personal capacities; and (2) whether the Torture Victim Protection Act abrogates all common-law conduct-based immunity for foreign officials, as the U.S. Court of Appeals for the District of Columbia Circuit held below, or leaves immunity intact, as the U.S. Courts of Appeals for the 2nd and 9th Circuits have held.
(relisted after the January 10 conference)

Americans for Prosperity Foundation v. Becerra, 19-251
Issue: Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.
(relisted after the January 10 conference)

Thomas More Law Center v. Becerra, 19-255
Issues: (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; and (2) whether California’s disclosure requirement violates charities’ and their donors’ freedom of association and speech facially or as applied to the Thomas More Law Center.
(relisted after the January 10 conference)

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 19-296
Issues: (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council, rather than the rule of lenity, takes precedence in the interpretation of statutory language defining an element of various crimes when such language also has administrative applications; (2) whether, if Chevron deference applies and takes priority over the rule of lenity, such deference can be waived in the course of litigation and on appeal; and (3) whether, if Chevron deference applies and cannot be waived, Chevron should be overruled.
(relisted after the January 10 conference)

McKeever v. Barr, 19-307
Issue: Whether district courts have inherent authority to release grand jury materials in extraordinary circumstances, such as when the case is historically significant and the public interest strongly favors disclosure.
(relisted after the January 10 conference)

Cannon v. Seay, 19-311
Issues: (1) Whether, in review of a state decision under 28 U.S.C. § 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendant’s objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial court’s fact-finding; and (2) whether, in granting relief under 28 U.S.C. § 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court in Arizona v. Washington and accord deference to the state court’s ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the court’s oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the state’s mistrial motion.
(relisted after the January 10 conference)

Arlene’s Flowers, Inc. v. Washington, 19-333
Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.
(relisted after the January 10 conference)

Ford Motor Company v. Montana Eighth Judicial District Court, 19-368
Issue: Whether the “arise out of or relate to” requirement for a state court to exercise specific personal jurisdiction over a nonresident defendant under Burger King Corp. v. Rudzewicz is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
(relisted after the January 10 conference)

Ford Motor Company v. Bandemer, 19-369
Issue: Whether the “arise out of or relate to” requirement of the 14th Amendment’s due process clause is met when none of the defendant’s forum contacts caused the plaintiff’s claims, such that the plaintiff’s claims would be the same even if the defendant had no forum contacts.
(relisted after the January 10 conference)

Baldwin v. United States, 19-402
Issues: (1) Whether National Cable & Telecommunications Association v. Brand X Internet Services should be overruled; and (2) whether a federal agency’s statutory construction should receive any deference when it contradicts a court’s precedent and disregards traditional tools of statutory interpretation, such as the common-law presumption canon.
(relisted after the January 10 conference)

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 19-431
Issues: (1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and (2) whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
(relisted after the January 10 conference)

Trump v. Pennsylvania, 19-454
Issues: (1) Whether the Departments of Health and Human Services, Labor and the Treasury had statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act of 1993 to expand the conscience exemption to the contraceptive-coverage mandate; (2) whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules – which were issued after notice and comment – invalid under the Administrative Procedure Act; and (3) whether the U.S. Court of Appeals for the 3rd Circuit erred in affirming a nationwide preliminary injunction barring implementation of the final rules.
(relisted after the January 10 conference)

Chiafalo v. Washington, 19-465
Issue: Whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state’s penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.
(rescheduled before the December 13, 2019, conference; relisted after the January 10 conference)

Colorado Department of State v. Baca, 19-518
Issues: (1) Whether a presidential elector who is prevented by their appointing state from casting an electoral-college ballot that violates state law lacks standing to sue their appointing state because they hold no constitutionally protected right to exercise discretion; and (2) whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.
(relisted after the January 10 conference)

United States v. California, 19-532
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the January 10 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, and January 10 conferences)

Reed v. Texas, 19-411
Issues: (1) How a court should consider under the Brady materiality standard the impact of a key trial witness’s assertion of the privilege against self-incrimination and refusal to testify when confronted with the suppressed exculpatory evidence; (2) when expert testimony relied on by the state in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the state’s use of the testimony violated due process; and (3) whether the conviction or execution of a person who is actually innocent of a crime violates the U. S. Constitution.
(relisted after the November 22, 2019, December 6, 2019, December 13, 2019, and January 10 conferences)