Relist Watch

John Elwood reviews Mondays relists.

Since our last update, the Supreme Court has been doing a great job thinning the ranks of the relists, by:

• granting review in a Religious Freedom Restoration Act case;
• summarily vacating a campaign-finance decision from the U.S. Court of Appeals for the 9th Circuit and remand[ing] for that court to revisit whether Alaskas campaign contribution limits are consistent with our First Amendment precedents, including one 2006 precedent, Randall v. Sorrell, that the 9th Circuit opinion already explicitly addressed;
• finally denying review on the much-relisted Gundy v. United States nondelegation-doctrine rehearing petition, and in the process shaking loose a statement respecting denial in a companion case in which the only member of the court not to sit on Gundy opined that Justice Neil Gorsuchs delegation-skeptical separate opinion in that case may warrant further consideration;
• denying review in a capital case in which the trial judge had a significant history prosecuting the defendant in previous matters and opposing clemency efforts, with a separate opinion by Justice Sonia Sotomayor; and
• denying review in two cases involving allegations of defamation based on commentary critical of a climate scientist, drawing Justice Samuel Alitos dissent from denial of cert.

Phew! I dont know about you, but just letting all those thoughts wander through my head is more activity than I usually get in a month. So let me just pause here for a moment to catch my breath.

[Two days later.] The court also added two new relists. Both are pretty fact-intensive, so both seem more like separate-opinion fodder than plenary-review material.

First up is Reed v. Texas, 19-411, a capital case filed by a member of O.J. Simpsons dream team that raises three questions. Ill begin with the last question, which has been kicking around since before I graduated from law school 25 years ago: whether the conviction of (or, more to the point, the execution of) a person who is actually innocent of the crime violates the Constitution. The case also raises questions about the interaction of Brady v. Maryland and the states obligation to turn over material exculpatory evidence when the witness in question is asserting the privilege against self-incrimination. Lastly, the cert petition asks whether it violates constitutional due process when expert testimony the state relies on is later shown to be scientifically invalid. Well see, but I suspect we have an opinion coming.

That brings us to a relist with the impossibly New Englandy caption Smyth v. Conservation Commission of Falmouth, 19-223, involving a small (.37 of an acre) property that petitioner Janice Smyths parents bought in the 1970s at the southwestern end of Cape Cod. The state appellate court concluded that various building restrictions reduced the value of the property from $700,000 (if buildable) to $60,000 (if unbuildable), which the petitioner contends constitutes a regulatory taking under Penn Central Transportation Co. v. City of New York. Penn Central has been heavily criticized over the years. In the coming weeks, well find out how much those criticisms are resonating.

Until next time, thanks for tuning in!

New Relists

Reed v. Texas, 19-411

Issues: (1) How a court should consider under theBradymateriality standard the impact of a key trial witness’s assertion of the privilege against self-incrimination and refusal to testify when confronted with the suppressed exculpatory evidence; (2) when expert testimony relied on by the state in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the states use of the testimony violated due process; and (3) whether the conviction or execution of a person who is actually innocent of a crime violates the U. S. Constitution.

(relisted after the November 22 conference)

Smyth v. Conservation Commission of Falmouth, 19-223

Issues: (1) Whether the loss of all developmental use of property and a 91.5 percent decline in its value is a sufficient economic impact to support a regulatory takings claim underPenn Central Transportation Co. v. New York City; (2) whether a person who acquires land in a developed area, prior to regulation, has a legitimate expectation of building and, if so, whether that interest can be defeated by a lack of investment in construction; and (3) whether the Supreme Court should excise the character factor fromPenn Centralregulatory takings analysis.

(relisted after the November 22 conference)

Returning Relists

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 under18 U.S.C 1151(a).

(relisted after the October 1, October 11, October 18, November 1, November 8, November 15 and November 22 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, November 15 and November 22 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 states 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, November 15 and November 22 conferences)

Andrus v. Texas, 18-9674

Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced inStrickland 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 counsels ineffective representation.

(rescheduled before the November 1 and November 8 conferences; relisted after the November 15 and November 22 conferences)

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 and November 22 conferences)