Status Quo Watch

John Elwood briefly reviews Tuesday’s relists.

There were no new relists this week. Good thing, too, because some of us have other business to attend to. But we’ll be back next week with whatever offerings the court has for us.

New Relists

Sorry, folks. Park’s closed. The moose out front shoulda told you.

Returning 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, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10 and January 17 conferences)

Reed v. Texas, 19-411
Issues: (1) How a court should consider under the Brady materiality 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 state’s 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, 2019, December 6, 2019, December 13, 2019, January 10 and January 17 conferences)

Patterson v. Walgreen Co., 18-349
Issues: (1) Whether an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice is “reasonable” per se, as the U.S. Courts of Appeals for the 1st, 4th and 11th Circuits hold; does it instead create a jury question, as the U.S. Courts of Appeals for the 8th and 10th Circuits hold; or must an accommodation fully eliminate the conflict in order to be “reasonable” as the U.S. Courts of Appeals for the 2nd, 7th and 9th Circuits hold; (2) whether speculation about possible future burdens is sufficient to meet the employer’s burden in establishing “undue hardship,” as the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits hold, or must the employer demonstrate an actual burden, as the U.S. Courts of Appeals for the 4th, 8th, 9th and 10th Circuits hold; and (3) whether the portion of TWA v. Hardison opining that “undue hardship” simply means something more than a “de minimis cost” should be disavowed or overruled. CVSG: 12/9/2019.
(rescheduled before the February 15, 2019, and February 22, 2019, conferences; relisted after the March 1, 2019, January 10 and January 17 conferences)

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921
Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability. CVSG: 12/6/2019.
(relisted after the March 29, 2019, April 12, 2019, April 18, 2019, April 26, 2019, May 9, 2019, May 16, 2019, May 23, 2019, May 30, 2019, June 6, 2019, June 13, 2019, January 10 and January 17 conferences)

Ricks v. Idaho Contractors Board, 19-66
Issue: Whether the Supreme Court should revisit its holding in Employment Division v. Smith that the free exercise clause generally requires no religious exemptions from laws that are neutral and generally applicable.
(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 and January 17 conferences)

Fulton v. City of Philadelphia, 19-123
Issue: Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; (2) whether Employment Division v. Smith should be revisited; and (3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster-care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
(rescheduled before the December 6, 2019, and December 13, 2019, conferences; relisted after the January 10 and January 17 conferences)

Americans for Prosperity Foundation v. Becerra, 19-251
Issue: Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest.
(relisted after the January 10 and January 17 conferences)

Thomas More Law Center v. Becerra, 19-255
Issues: (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; and (2) whether California’s disclosure requirement violates charities’ and their donors’ freedom of association and speech facially or as applied to the Thomas More Law Center.
(relisted after the January 10 and January 17 conferences)

Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 19-296
Issues: (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council, rather than the rule of lenity, takes precedence in the interpretation of statutory language defining an element of various crimes when such language also has administrative applications; (2) whether, if Chevron deference applies and takes priority over the rule of lenity, such deference can be waived in the course of litigation and on appeal; and (3) whether, if Chevron deference applies and cannot be waived, Chevron should be overruled.
(relisted after the January 10 and January 17 conferences)

Cannon v. Seay, 19-311
Issues: (1) Whether, in review of a state decision under 28 U.S.C. § 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendant’s objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial court’s fact-finding; and (2) whether, in granting relief under 28 U.S.C. § 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court in Arizona v. Washington and accord deference to the state court’s ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the court’s oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the state’s mistrial motion.
(relisted after the January 10 and January 17 conferences)

Arlene’s Flowers, Inc. v. Washington, 19-333
Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.
(relisted after the January 10 and January 17 conferences)

Baldwin v. United States, 19-402
Issues: (1) Whether National Cable & Telecommunications Association v. Brand X Internet Services should be overruled; and (2) whether a federal agency’s statutory construction should receive any deference when it contradicts a court’s precedent and disregards traditional tools of statutory interpretation, such as the common-law presumption canon.
(relisted after the January 10 and January 17 conferences)