Relist Watch

John Elwood hastily reviews Monday’s relists.

This week’s excuse for a short post requires just two words: Amtrak WiFi. Finding that one link took me from Baltimore to Wilmington. But at least I only had to reconnect 47 times.

Last week, the Supreme Court took two serially rescheduled cases, both involving the intersection of the First Amendment and climate change, and relisted them. This week, two of the three new relists are again serially rescheduled cases. One asks the court to revisit its standard for evaluating ineffective assistance of counsel claims, arguing that the prevailing understanding of the longstanding Strickland v. Washington test does not adequately protect Sixth Amendment rights. The second relist asks whether, under the deferential standards of the Antiterrorism and Effective Death Penalty Act for reviewing state-court decisions on habeas proceedings, federal courts should defer to a state-court decision arising out of “a secret, thirteen-year-long policy to deny all pro se prisoner writ applications without judicial review.” Petitioner Louie Schexnayder Jr. was originally pro se. But after the National Association of Criminal Defense Lawyers filed an amicus brief arguing that there was “substantial evidence” of a “probability of actual bias” among the judges on the state court in question (Louisiana’s Fifth Circuit Court of Appeals), counsel appeared to represent Schexnayder and file a reply brief.

The remaining new relist is another cert petition from the solicitor general involving the government’s operation of the “no fly list.” The case caption contains a colorful abbreviation reflecting the fact that the plaintiffs did not know the first name of the government agent who serves as the lead defendant: FNU Tanzin v. Tanvir, 19-71. That case presents the question whether the Religious Freedom Restoration Act of 1993 permits suits seeking money damages against individual federal employees. The court recently denied the government’s last “no fly list” petition, which involved an unrelated issue concerning the award of attorneys’ fees to a woman wrongly placed on the list.

There’s no conference next week, so it’ll be two weeks before I have to dash off another one of these (and you have to decide whether to waste your time reading it). Until then!

New 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 and November 8 conferences; relisted after the November 15 conference)

Schexnayder v. Vannoy, 18-8341
Issue: Whether jurists of reason could debate whether to apply deference under the Antiterrorism and Effective Death Penalty Act to a state court decision arising out of a secret, 13-year-long policy to deny all pro se prisoner writ applications without judicial review.
(rescheduled before the October 1, October 11, October 18, November 1 and November 8 conferences; relisted after the November 15 conference)

FNU Tanzin v. Tanvir, 19-71
Issue: Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, permits suits seeking money damages against individual federal employees.
(relisted after the November 15 conference)

Returning Relists

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1, October 11, October 18, November 1, November 8 and November 15 conferences)

Paul v. United States, 17-8830
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the September 24, 2018, June 27, 2019, October 18, 2019, November 1, November 8 and November 15 conferences)

Caldwell v. United States, 18-6852
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the February 15, June 27, October 18, November 1, November 8 and November 15 conferences)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 1, October 11, October 18, November 1, November 8 and November 15 conferences)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(relisted after the October 1, October 11, October 18, November 1, November 8 and November 15 conferences)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 1, October 11, October 18, November 1, November 8 and November 15 conferences)

Thompson v. Hebdon, 19-122
Issue: Whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment.
(relisted after the November 1, November 8 and 15 conferences)

Competitive Enterprise Institute v. Mann, 18-1477
Issues: (1) Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern; and (2) whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 and 15 conferences)

National Review, Inc. v. Mann, 18-1451
Issues: (1) Whether the question of whether a statement contains a “provably false” factual connotation is a question of law for the court (as most federal circuit courts hold), or is a question of fact for the jury when the statement is ambiguous (as many state high courts hold); and (2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct.”
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 and 15 conferences)

Carney v. Adams, 19-309
Issues: (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; and (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts.
(relisted after the November 8 and 15 conferences)