Relist Watch

Four new relists include cases on abortion and state secrets

 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 cleared out a lot of relisted cases this week, granting review in Servotronics, Inc. v. Rolls-Royce PLC, 20-794 (involving compelled domestic discovery for foreign arbitration proceedings) and United States v. Tsarnaev, 20-443 (whether the Boston Marathon bomber was deprived of a fair trial by pretrial publicity), and denying review in three with separate opinions: Massachusetts Lobstermen’s Association v. Coggins, 20-97 (presidential authority to declare marine sanctuaries), Longoria v. United States, 20-5715 (scope of the acceptance-of-responsibility reduction under the Sentencing Guidelines), and Smith v. Titus, 20-633 (closing of trial to public).

The court has 154 petitions scheduled for review at Friday’s conference. The justices will be paying particular attention to four of them: this week’s new relists, which are under consideration for a second time.

Perhaps the likeliest grant is United States v. Zubaydah.  Zayn Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden who was detained abroad after his capture in Pakistan and who is now being held at the U.S. government’s Guantanamo Bay detention facility. Zubaydah alleges that, before being transferred to Guantanamo, he was held at a CIA “dark site” in Poland, where two former CIA contractors used “enhanced interrogation techniques” against him. Zubaydah, through his attorneys, intervened in a Polish criminal investigation into the CIA’s conduct in that country, and he sought to compel the U.S. government (using the discovery provision at issue in Servotronics) to hand over evidence connected with that investigation.

Though the government has declassified some information about Zubaydah’s treatment in CIA custody, it determined that certain categories of information — including the identities of its foreign intelligence partners and the location of former CIA detention facilities in their countries — could not be declassified without risking undue harm to national security, and thus invoked the “state secrets” privilege. By a 2-to-1 vote, a panel of the U.S. Court of Appeals for the 9th Circuit rejected the government’s assertion of the state-secrets privilege to protect that information, and twelve judges dissented from the denial of rehearing en banc, alleging that the panel’s decision rests on “grave legal errors” and “poses a serious risk to our national security.” If there were a betting market for Supreme Court grants, I’d wager at least a couple of bucks on that one winning review.

In Cameron v. EMW Women’s Surgical Center, P.S.C., the court faces a procedural question in a high-profile abortion case. In 2018, Kentucky passed strict restrictions on an abortion procedure known as dilation and evacuation. The EMW Women’s Surgical Center sued, and Kentucky’s health secretary defended the law in court. A district court struck down the law, relying on Whole Woman’s Health v. Hellerstedt, a 2016 decision involving Texas abortion regulations. After the U.S. Court of Appeals for the 6th Circuit affirmed this decision, the secretary decided not to pursue any further appeals. Kentucky Attorney General Daniel Cameron moved to intervene in the case in order to challenge the 6th Circuit’s ruling, but the 6th Circuit denied his request. Five days later, the Supreme Court decided June Medical Services LLC v. Russo, a 2020 decision that struck down Louisiana abortion regulations, though Chief Justice John Roberts’ concurring opinion arguably limited aspects of Whole Woman’s Health. In his petition, Cameron argues that he should have been allowed to intervene to defend the Kentucky law and that the 6th Circuit’s decision striking the law down should be reconsidered in light of June Medical.

Woodard v. United States, 20-6387, involves the standard for evaluating a claim of unconstitutional pre-indictment delay. In early 2015, police searched a home on North Elwood Avenue in Tulsa, Oklahoma that had utilities listed in Darrin Woodard’s name. There they found drugs and firearms. Three years later, federal authorities indicted Woodard on several charges stemming from the search; each charge turned on the government’s ability to prove Woodard’s constructive possession of the drugs. Woodard moved to dismiss the indictment, alleging unconstitutional pre-indictment delay. The district court found Woodard had been prejudiced, because the leaseholder on the home at the time of the search had died during the intervening years, and Woodard claimed he would have proven that he did not live there. But under circuit precedent, Woodard could not establish that the government had purposefully delayed indicting him to prejudice or harass him. The government grudgingly concedes there is a split on the issue, and raises a welter of arguments why review nevertheless isn’t warranted. We’ll have a better idea Monday whether the court is persuaded.

Antony Hines was convicted of the 1985 killing of Katherine Jenkins in a motel in Kingston Springs, Tennessee. A divided panel of the 6th Circuit, in an unpublished per curiam opinion, invalidated his murder conviction and death sentence on the ground that a state court had unreasonably applied Strickland v. Washington, when it concluded that Hines suffered no prejudice from any deficiencies in his counsel’s performance at the guilt and penalty phases of his capital trial in investigating an alternative suspect. Sometime Supreme Court short-lister Judge Raymond Kethledge dissented. In Mays v. Hines, 20-507, the state of Tennessee argues that the 6th Circuit was insufficiently deferential in its review of the state court decision. Because the Supreme Court has on several occasions summarily reversed the 6th Circuit, holding that it had been insufficiently deferential on habeas review, the state’s petition is undoubtedly getting a close look.

That’s all for this week. Stay safe!

New Relists

Mays v. Hines, 20-507
Issue: Whether the U.S. Court of Appeals for the 6th Circuit’s decision — invalidating Anthony Hines’ decades-old murder conviction and death sentence on the ground that a state court unreasonably applied Strickland v. Washington, when it concluded that Hines suffered no prejudice from any deficiencies in his counsel’s performance at the guilt and penalty phases of his capital trial — conflicts with the Supreme Court’s precedents governing claims of ineffective assistance of counsel under the Antiterrorism and Effective Death Penalty Act of 1996.
(relisted after the March 19 conference)

United States v. Abu Zubaydah, 20-827
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
(relisted after the March 19 conference)

Woodard v. United States, 20-6387
Issue: Whether, as many courts have held, allowing a prosecution to continue after lengthy and demonstrably prejudicial delay in filing criminal charges offends due process, even absent prosecutorial intent to gain a tactical advantage or harass, when the prosecution cannot provide an explanation for the delay sufficient to justify the extent of the prejudice suffered by the defendant.
(relisted after the March 19 conference)

Cameron v. EMW Women’s Surgical Center, P.S.C., 20-601
Issues: (1) Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law; and (2) whether, if so, the Supreme Court should vacate the judgment below and remand for further consideration in light of June Medical Services, L.L.C. v. Russo.
(relisted after the March 19 conference)

Returning Relists

Biden v. Knight First Amendment Institute, 20-197
Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences)

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11 conferences; relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8, Jan. 15, Jan. 22, Feb. 19, Feb. 26, March 5 and March 19 conferences)

Small v. Memphis Light, Gas & Water, 19-1388
Issue: Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets 42 U.S.C. § 2000e(j) – which specifies that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” – and should be overruled.
(rescheduled before the Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19, Feb. 26, March 5 and March 19 conferences)

Dalberiste v. GLE Associates, Inc., 19-1461
Issue: Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an “undue hardship” under Title VII.
(rescheduled before the Oct. 9, Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19, Feb. 26, March 5 and March 19 conferences)