Relist Watch in the Time of Cholera
on Mar 19, 2020 at 9:22 am
John Elwood briefly reviews Monday’s relists
This week’s installment of Relist Watch will be unlike any one you’ve ever read. Most of them read like they were written by some unshaven lout in his basement wearing sweatpants. By contrast, this one actually was written by an unshaven lout in his basement wearing sweatpants. So while this post may be bad as ever, at least it’s authentic.
Practically nothing has happened since our last installment. This week, the Supreme Court found its replacement for Mathena v. Malvo, 18-217, involving a question about whether the Eighth Amendment requires a judge imposing sentence to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. All the other relisted cases presenting the same issue are now on hold. And I was half right about Pittman v. Harris, 19-466, a first-time relist involving the proper summary judgment standard in a qualified immunity case. I was right that the court would not grant review in the case. But I was wrong that some sort of opinion would be forthcoming: Instead, the court noted in just a single sentence that Justice Samuel Alito “would grant the petition for a writ of certiorari.” All the rest of last week’s relists are back — and I suspect we’ll be seeing opinions in some of them soon.
Two new relists this week. First up is Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455. If its facts read like a law-school exam hypothetical, it’s because they already have been used for that very purpose. WMATA, the entity responsible for running the capital city’s world–class transit system, has a number of advertising guidelines. Guideline 12 prohibits “[a]dvertisements that promote or oppose any religion, religious practice or belief.” As Christmas 2017 was approaching, the Archdiocese of Washington sought to advertise its “Find the Perfect Gift” campaign on the exterior of the buses WMATA operated. Its proposed advertisement depicted the silhouette of three shepherds and sheep accompanied by the message: “Find the Perfect Gift.” Although WMATA accepts a wide variety of advertisements, including secular advertisements addressing Christmas and charitable giving, it refused to run the Archdiocese’s advertisement because of its policy prohibiting advertisements that promote or oppose religion or reflect a religious perspective. Then-Judge Brett Kavanaugh was on the panel of the U.S. Court of Appeals for the D.C. Circuit that heard argument, but he moved to his current position soon afterwards. The remaining two judges then upheld WMATA’s policy, holding that it was a constitutional viewpoint-neutral restriction that was consistent with the purposes of the nonpublic forum.
The Supreme Court first considered this case at the so-called “long conference” at the end of the summer recess on October 1. I presume the court was holding it — perhaps for Espinoza v. Montana Department of Revenue, which raises another free exercise question. On February 19, it released the hold and set the case for consideration at the March 6 conference, and then relisted it for the upcoming March 20 conference. The case pits two former solicitors general against each other, with Paul Clement for the Archdiocese and Don Verrilli for WMATA. But because Kavanaugh will almost certainly recuse himself from further participation, there is a prospect of the court’s dividing 4-4 on the case.
United States v. California, 19-532, should be familiar to inveterate time-wasters, because it was featured in Relist Watch in mid-January. That case concerns several California laws enacted in 2017 that generally prohibit state law-enforcement officials and various employers from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and also restrict the transfer of people in state custody to federal immigration custody. The federal government sued California, arguing that those statutes are preempted by federal law or barred by intergovernmental immunity. The district court enjoined a couple of provisions from going into effect (prohibiting employers from consenting to federal immigration inspections and limiting employers’ ability to reverify employees’ work authorizations), but it allowed virtually all to go into force. The U.S. Court of Appeals for the 9th Circuit affirmed the district court’s refusal to enjoin most provisions, but vacated its failure to enjoin one provision. The government seeks review, arguing that certain provisions prohibiting state officials from providing information to, or transferring individuals to the feds are preempted. The court briefly held this case after the January 17 conference, but released that hold on March 3. And now the case is relisted.
That’s all this week. Now to get back to pressing business. Everyone stay safe!
New Relists
Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455
Issues: (1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.
(relisted after the March 6 conference)
United States v. California, 19-532
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the March 6 conference)
Returning Relists
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, January 17, January 24, February 21, February 28 and March 6 conferences)
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, January 17, January 24, February 21, February 28 and March 6 conferences)
The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672
Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.
(relisted after the January 24 January 24, February 21, February 28 and March 6 conferences)
VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446
Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.
(relisted after the February 21, February 28 and March 6 conferences)
Davis v. United States, 19-5421
Issue: Whether factual error is categorically immune from plain error review.
(rescheduled before the January 10, 2020 conference; relisted after the February 21, February 28 and March 6 conferences)
Bazan v. United States, 19-6113
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21, February 28 and March 6 conferences)
Bazan v. United States, 19-6431
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21, February 28 and March 6 conferences)
Issue: Whether Randy Halprin’s second federal petition raising a judicial bias claim is “second or successive” under 28 U.S.C. § 2244(b)(2) if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprin’s initial habeas proceedings in the district court created Halprin’s first fair opportunity to present his claim.
(relisted after the February 21, February 28 and March 6 conferences)
Avery v. United States, 19-633
Issue: Whether 28 U.S.C. § 2244(b)(1) applies to federal prisoners seeking relief under 28 U.S.C. § 2255.
(relisted after the February 28 and March 6 conferences)
