Relist watch

By John Elwood
on Oct 5, 2011 at 7:53 pm

John Elwood reviews the cases relisted after the Long Conference.

The Court is taking a second look at several important cases after the “Long Conference” — the sort of cases that chuckleheads have in mind when they spout obviousisms like “[t]his could be a blockbuster term, depending on how events break.” For starters, the Court has relisted two petitions involving an Establishment Clause challenge to roadside crosses memorializing fallen state troopers, Utah Highway Patrol Ass’n v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297, which in many ways are follow-ons to OT2009’s plurality opinion in Salazar v. Buono (involving a cross used as a war memorial), and which together must set some kind of record for amicus participation at the cert. stage. The Court also relisted in two cases presenting the question whether imposing a sentence of life without parole on an underage offender convicted of murder violates the Eighth Amendment’s Cruel and Unusual Punishments Clause, which are follow-ons to OT2009’s Graham v. Florida (which held that the Eighth Amendment prohibited such sentences for nonhomicide offenses). Those two cases are the consecutively numbered Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647.

As long as we’re talking about constitutional criminal procedure, Blueford v. Arkansas, 10-1320, presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense. I haven’t been able to track down the briefs yet, but Sun v. United States, 10-9333, apparently presents the question whether judges of the District Court for the Northern Mariana Islands are able to hear criminal cases arising under the laws of the United States, because its judges do not enjoy the protections of Article III of the Constitution. This is a sequel to 2003’s Nguyen v. United States, which held that judges of the U.S. District Court for the District of Guam lacked statutory authority to sit by designation on the court of appeals because they lack Article III tenure. Buck v. Thaler, 11-6391, is a capital case in which the Court has granted a stay, which will dissolve if the Court denies cert.; the petition primarily presents questions about whether the petitioner’s race played an impermissible role in the sentencing phase of his capital murder trial. And it is hard to ferret out information on in forma pauperis cases quickly, but Pacheco-Garcia v. United States, 10-9445, Guerrero-Campos v. United States, 10-9746, and Wesevich v. United States, 10-10340, all appear to involve the third prong of plain error review (establishing prejudice) in the context of Guidelines sentencing.

On the federal statutory front, Magner v. Gallagher, 10-1032, involves whether disparate impact claims are cognizable under the Fair Housing Act. There are also three cases all presenting a question relating to an increasingly common type of litigation, in which alleged victims of acts of torture committed abroad sue the alleged perpetrators in U.S. courts. Kiobel v. Royal Dutch Petroleum Co., 10-1491, Bowoto v. Chevron Corp., 10-1536, and Mohamad v. Rajoub, 11-88, each involves whether corporations can be sued for such claims. United States v. New York, 10-1404, and Oneida Nation of New York v. County of Oneida, 10-1420, both involve whether the United States and the Oneida Indian Nation can obtain relief for claims that Oneida lands in New York were alienated in violation of the Nonintercourse Act.

With respect to habeas corpus, two cases involve Michigan v. Long and the identification of adequate and independent state grounds to support a state-court judgment (and thus to preclude federal habeas relief): Rocha v. Thaler, 10-9659, and Adams v. Thaler, 10-10881; Rocha involved a long dissent from denial of rehearing en banc that apparently got the Court’s attention. The Court also relisted three petitions filed by state attorneys general claiming that decisions granting state prisoners federal habeas relief were insufficiently deferential to state courts, and suggesting that summary action is appropriate: Cash v. Maxwell, 10-1548, Ryan v. Doody, 11-175 (both from the Ninth Circuit, the latter case en banc), and Hardy v. Cross, 11-74 (Seventh Circuit). Ohio is similarly seeking review of what it says was an insufficiently deferential decision by the Sixth Circuit in Bobby v. Dixon, 10-1540, which the state also claims disregarded various Supreme Court precedents. In light of the Sixth Circuit’s record of reversals in habeas cases (several of them by summary action), this one is worth watching closely.

Johnson v. Obama, 10-10652, involves questions about the propriety of a judge presiding over a case in which she was a named defendant, and what the appropriate relief would be. The case is a bit unusual in that the Court has relisted it despite the fact that the Solicitor General waived his right to file a response and the Court hasn’t yet ordered him to file one.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

I didn’t have it in me to do the “holds” from Monday’s colossal order list; the “hold watch” aspect of this feature will (probably) return next week.

Utah Highway Patrol Ass’n v. American Atheists (relisted after the 9/26 Conference)

Docket: 10-1276

Issue(s): (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech?