Mission Creep Watch

John Elwood reviews Monday’s relists.

It’s good to be the government. That’s the lesson of last week’s orders, in which the Supreme Court decided to review four cases, and the solicitor general was “topside” in three.  The other relisted petitions were not so lucky. The court denied cert in two, although petitioners in both got consolation prizes: Justice Neil Gorusch, joined by Justices Sonia Sotomayor and Elena Kagan, filed a decision respecting denial (complete with a photo!) in the Fourth Amendment curtilage case, and Justice Clarence Thomas filed a dissent from denial in the Oklahoma tax case.

It’s mercifully a light relist week. There is only one new relist: Woodard v. United States, 20-5758. The case involves 18 U.S.C. § 924(c), which imposes a mandatory minimum sentence for using a firearm during and in relation to a crime of violence or drug trafficking offense. At the time of Damon Woodard’s conviction, the statute imposed a mandatory minimum 5-year sentence for the first offense; and a mandatory minimum 20-year consecutive sentence “[i]n the case of [a] second or subsequent conviction.” In Deal v. United States, the Supreme Court held that if a person was indicted for two or more such offenses in the same indictment, the second, third or fourth offense was a “second or subsequent conviction” and each would add an additional minimum 20-year consecutive sentence. The “stacking” of mandatory minimum sentences added up quickly, leading to some enormous sentences.

In 2018, Congress amended Section 924(c) as part of the First Step Act in what it characterized as a “clarification,” replacing the “second or subsequent conviction” language with an enhancement for any “violation of this subsection that occurs after a prior conviction under this subsection has become final.” Woodard asks the court to “revisit and recede from Deal.” It’s a positive sign for Woodard that the court relisted the case; relists are very positively associated with grants of review. But it’s a very bad sign that the government waived its right to respond and the court hasn’t called for a response; the court hasn’t granted without calling for a response in modern memory. That leads me to conclude this might be “dissent from denial” material.

Normally, that would be it. But because people read this column to get a preview of grants and it’s a light week, I thought that (at the risk of mission creep) I would preview a couple non-relisted cases that strike me as likely grants.

Carr v. Saul, 19-1442, and Davis v. Saul, 20-105, both involve an issue of particular concern given the court’s recent interest in separation of powers: whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments clause challenge to the appointment of the administrative law judge overseeing his or her case by failing to present that challenge during administrative proceedings. The government concedes that there is a circuit conflict on the issue and says that both cases are “appropriate vehicles” for resolving the conflict. But “[b]ecause the petition … in Carr was filed first,” the government says “the Court may wish to grant that petition and hold [Davis] pending the disposition of that case.” We’ll find out soon what the court thinks.

That’s all for now. Stay safe!

New Relists

Woodard v. United States, 20-5758
Issue: Whether the Supreme Court should revisit and recede from its decision in Deal v. United States, which permits the “stacking” of mandatory minimum sentences for first-time offenders under 18 U.S.C. § 924(c)(1)(C) for offenses contained within a single indictment, when subsequent congressional amendments have superseded Deal and clarified that the true intent of the statute is to punish recidivism.
(relisted after the Oct. 16 conference)

Returning Relists

National Football League v. Ninth Inning, Inc., 19-1098
Issues: (1) Whether an agreement among the members of a joint venture on how best to distribute the venture’s jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market; and (2) whether, notwithstanding the Supreme Court’s decision in Illinois Brick Co. v. Illinois, antitrust damages claims may be brought by indirect purchasers who do not allege that they paid a price fixed by the alleged conspirators.
(relisted after the Sept. 29, Oct. 9 and Oct. 16 conferences)

Mckesson v. Doe, 19-1108
Issue: Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither intended, authorized, directed, nor ratified the perpetrator’s act nor engaged in or incited violence of any kind.
(relisted after the Sept. 29, Oct. 9 and Oct. 16 conferences)

Taylor v. Riojas, 19-1261
Issues: (1) Whether, when the unconstitutionality of government officials’ conduct is obvious, that suffices to render the violation clearly established, as the U.S. Courts of Appeals for the 6th, 9th and 11th Circuits have recognized in analogous cases, or whether there must also be binding precedent directly on point, as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether government officials are entitled to qualified immunity so long as there is no prior precedent recognizing the unconstitutionality of an identical fact pattern, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether prior precedent can clearly establish a constitutional violation despite some factual variation, as the U.S. Courts of Appeals for the 3rd, 4th, 7th, 9th, 10th and 11th Circuits have held; and (3) whether the judge-made doctrine of qualified immunity, which is not justified by reference to the text of 42 U.S.C. § 1983 or its common law backdrop and which has been demonstrated not to serve its policy goals, should be narrowed or abolished.
(relisted after the Sept. 29, Oct. 9 and Oct. 16 conferences)

Shinn v. Kayer, 19-1302
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated 28 U.S.C. § 2254’s deferential standard, and employed a flawed methodology that the Supreme Court has repeatedly condemned, when it granted habeas relief based on a de novo finding that a Sixth Amendment violation had occurred.
(relisted after the Sept. 29, Oct. 9 and Oct. 16 conferences; record requested before the Oct. 15 conference)

Dailey v. Florida, 19-7309
Issue: Whether the Florida Supreme Court’s analysis of Chambers v. Mississippi, employing a factor-based approach that has been embraced by some courts but rejected by most others, was unconstitutional.
(relisted after the Sept. 29, Oct. 9 and Oct. 16 conferences)