John Elwood reviews Monday’s relists.
I’m traveling today, so I’m going to be more summary than usual. The April calendar already appears to have a full complement of 12 cases, but the court in theory could add to it with this Friday’s grants. Admittedly, if it does so, petitioners won’t have the full 30 days to file reply briefs before oral argument. After this Friday, the court’s next scheduled conference isn’t until February 15 – almost a month from now. And any cases granted at that conference will definitely be considered next fall.
Just one criminal law case among the relist rolls this week: Kahler v. Kansas, 16-6135, a capital case that addresses whether the Sunflower State’s effort to revise its courts’ consideration of the insanity defense violates the Eighth and 14th Amendments. But don’t be watching the order list for this case just yet – after relisting it for this Friday’s conference, the court called for the record. While that is a sign the court is looking very closely at this case, it means the court won’t consider it at conference again until the record has arrived and the justices have had a chance to review it.
In the “burying the lede” department, we have six other new relists. All involve challenges to Trump administration policies, and all involve the unusual procedure of requesting “cert before judgment” – that is, seeking Supreme Court review before the relevant court of appeals has ruled in the case. Three cases – Department of Homeland Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588, and Nielsen v. Vidal, 18-589 – involve the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals program. Under that program, DHS would refrain from taking immigration actions against people brought to the country as children, and those people would be eligible for work permits. Three other new relists involve challenges to the Defense Department’s policy respecting transgender service members, under which those found to have gender dysphoria would generally be barred from military service: Trump v. Karnoski, 18-676, Trump v. Jane Doe 2, 18-677, and Trump v. Stockman, 18-678.
In all six cases, a stay has been entered barring the administration from implementing the policy, and the solicitor general seeks cert before judgment to allow speedy review. Barring expedited briefing or a special May sitting, this Friday represents the last real opportunity for these cases to be heard this term.
That’s all for this week. Thanks again to Tom Mitsch for compiling the relists.
New Relists
Department of Homeland Security v. Regents of the University of California, 18-587
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 conference)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 conference)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 conference)
Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
(relisted after the January 11 conference)
Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
(relisted after the January 11 conference)
Issue: Whether the district court erred in preliminarily enjoining the military from implementing nationwide the 2018 policy of Secretary of Defense James Mattis under which transgender individuals would be permitted to serve in the military, while individuals with a history of a medical condition called gender dysphoria would be disqualified from military service unless they meet certain conditions.
(relisted after the January 11 conference)
Issue: Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.
(relisted after the January 11 conference)
Returning Relists
Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)
Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)
Kennedy v. Bremerton School District, 18-12
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.
Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
(relisted after the October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)
Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.
(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, January 4 and January 11 conferences)
Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
(relisted after the December 7, January 4 and January 11 conferences)
Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.
(relisted after the December 7, January 4 and January 11 conferences)
Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.
(relisted after the December 7, January 4 and January 11 conferences)
Bostock v. Clayton County, Georgia, 17-1618
Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
(relisted after the January 4 and January 11 conferences)
Altitude Express Inc. v. Zarda, 17-1623
Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.
(relisted after the January 4 and January 11 conferences)
R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107
Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.
(relisted after the January 4 and January 11 conferences)
New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280
Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
(relisted after the January 4 and January 11 conferences)
Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364
Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.
(relisted after the January 4 and January 11 conferences)
The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365
Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.
(relisted after the January 4 and January 11 conferences)
Schock v. United States, 18-406
Issues: (1) Whether a member of the legislative branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.
(relisted after the January 4 and January 11 conferences)
Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483
Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
(relisted after the January 4 and January 11 conferences)
Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.
(relisted after the January 4 and January 11 conferences)
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