Blockbuster Watch

John Elwood reviews Monday’s relists

How does the Supreme Court possibly top the excitement of last Friday’s fourteen new grants — including grants in a few important First Amendment cases? With 10 new relists, including some cases that could be blockbusters if the court decides to take them.

Perhaps the most blockbustery of them all is Dobbs v. Jackson Women’s Health Organization, 19-1392, a case that was originally on track for the court’s Sept. 29 conference, but which has been repeatedly delayed as the justices rescheduled it nine times. The case involves a Mississippi law that prohibits abortion, with limited exceptions, after 15 weeks’ gestation. The U.S. Court of Appeals for the 5th Circuit held that an outright ban on elective pre-viability abortion is unconstitutional, and Mississippi seeks review. This case has been very closely watched as an indication of how the justices appointed by President Donald Trump might affect the court’s abortion jurisprudence — and particularly, about the effect of replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett.

To keep Dobbs company, the court also relisted an abortion case out of Texas, Planned Parenthood Center for Choice v. Abbott, 20-305. The Texas governor, citing the COVID-19 pandemic, issued an executive order that banned many abortions, purportedly to preserve personal protective equipment and hospital capacity. Trial courts twice entered temporary restraining orders, but the 5th Circuit twice granted writs of mandamus to dissolve the TROs. Before the abortion providers could seek Supreme Court review, the governor replaced the challenged executive order with a new one that permitted abortion providers to resume. Planned Parenthood Center for Choice now argues that under United States v. Munsingwear, Inc., which held that “where intervening mootness prevents appellate review of [an] underlying decision, the decision below ordinarily should be vacated,” the Supreme Court should vacate the 5th Circuit’s judgments granting mandamus.

Speaking of Texas blockbusters — or would it be a California blockbuster? — how about Texas v. California, 220153? No, that docket number isn’t a typographical error: The case is on the court’s “original” docket, for cases that originate directly in the Supreme Court, frequently involving disputes between two states. In 2016, California’s legislature enacted a law prohibiting state-funded or state-sponsored travel to any state that has enacted a law that has the effect of voiding or repealing existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or that authorizes discrimination against same-sex couples or their families or on the basis of sexual orientation gender identity, or gender expression. Texas in 2017 adopted a law that forbids Texas agencies, local governments and certain private parties from taking “any adverse action” against a foster-care or adoption agency that “decline[s] to provide [or] facilitate … services that conflict with … the provider’s sincerely held religious beliefs,” allowing groups to decline to provide services to a same-sex couple on religious grounds. California has applied its travel ban to Texas and 10 other states that have similar laws. Texas argues that the California law improperly reflects religious animus and violates the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. The court called for the views of the solicitor general, who told the court that Texas’s motion to file a bill of complaint to initiate proceedings should be granted.

Next up are two election-law cases. The petitions in Republican Party of Pennsylvania v. Boockvar, 20-542, and Scarnati v. Pennsylvania Democratic Party, 20-574, involve challenges to the Pennsylvania Supreme Court’s extension of an absentee-voting deadline last year. The challengers originally sought to undo the Pennsylvania results, but after the justices declined to intervene on an expedited basis, Republicans acknowledged in their Dec. 15 Boockvar reply brief that the case “cannot change the outcome” of the 2020 election. They argue that the court nonetheless should grant review in order to clarify the law for future elections.  Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, has already opined that “there is a strong likelihood that the [Pennsylvania] Supreme Court decision violates the Federal Constitution.” So they likely need to pick up only one more vote for the court to grant review.

Gutierrez v. Saenz, 19-8695. Ruben Gutierrez has spent more than 20 years on death row for murdering an 85-year-old woman during a robbery. Gutierrez’s case concerns his ability to be accompanied by clergy during his execution — something that has been a hot-button issue in recent years. Until March 2019, Texas allowed inmates being executed to have a Christian or Muslim spiritual adviser with them in the execution chamber, but not advisers of other faiths. In March 2019, the Supreme Court stayed the execution of a Buddhist prisoner, Patrick Murphy, to give him time to file a cert petition, “unless [Texas] permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber.” In a concurring opinion, Justice Brett Kavanaugh acknowledged that states may have “a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions.” Because a state could not “allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room,” Kavanaugh suggested that one possible solution would be for the state to exclude all spiritual advisers from the execution chamber. A few days later, Texas adopted a new policy that did just that.

Gutierrez, a Catholic, sued, arguing that the policy violates the Constitution and the Religious Land Use and Institutionalized Persons Act, a federal law that protects the religious rights of inmates. A federal district court in Texas agreed with him and stayed his execution. After the 5th Circuit lifted that stay, the Supreme Court in June entered its own stay. As with Dobbs, rather than quickly take Gutierrez’s petition up at its private conference to decide whether to grant review, the Supreme Court rescheduled the case nine times before finally considering it for the first time last week. We should have a better idea soon whether the court will review his case.

I’m going to start being a little summary now so I can turn to pressing matters. United States v. Tsarnaev, 20-443, is inherently high-profile because it involves the prosecution of Dzhokhar Tsarnaev, who was sentenced to death for the 2013 Boston Marathon bombing. The U.S. Court of Appeals for the 1st Circuit set aside Tsarnaev’s death sentence on the grounds that the trial judge, during the 21-day jury selection, did not do enough to ensure the jurors who were seated had not been prejudiced by pretrial publicity; also, it concluded the trial judge had erred in excluding evidence that Tsarnaev’s older brother, whom Tsarnaev tried to blame for getting him on a “terrorist path,” was earlier involved in other crimes. The government seeks to have the death penalty reinstated.

Continuing on in the criminal vein: Johnson v. Precythe, 20-287, involves the appropriate procedures for a death row prisoner to establish a valid Eighth Amendment method-of-execution claim, and how the state can counter a prisoner’s argument that there is a more humane alternative method of execution. Harris v. Maryland, 20-101, involves the requirements for proving that pretrial delay has deprived a criminal defendant of due process of law. It asks, when pre-indictment delay has actually prejudiced the accused’s ability to defend himself, whether the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or whether courts can balance the prejudice to the defendant against the reasons for the delay.

Lastly, Massachusetts Lobstermen’s Association v. Ross, 20-97, involves the president’s authority to declare “objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” The U.S. Court of Appeals for the District of Columbia Circuit held that the president’s authority extends to submerged offshore lands within the “exclusive economic zone” between 12 and 200 nautical miles of the U.S. coastline. The challengers, who seek to improve the lives of noncrustaceans everywhere, argue that the authority only extends to areas where the federal government has plenary power, such as federal land and tribal land. They challenge President Barack Obama’s creation of the Northeast Canyons and Seamounts Marine National Monument, 130 miles southeast of Cape Cod, designated as a national monument to protect three underwater canyons, four undersea mountains, and the natural resources and ecosystems around them. Obama left office, however, before he could designate the other locations needed to bring those “natural resources” to their full potential.

We’ll be back next week with more. Until next time, stay safe!

New Relists

Texas v. California, 220153
Issue: Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection. CVSG: 12/4/2020.
(relisted after the Jan. 8 conference)

Dobbs v. Jackson Women’s Health Organization, 19-1392
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
(relisted after the Jan. 8 conference)

Gutierrez v. Saenz, 19-8695
Issues: (1) Whether, under the Religious Land Use and Institutionalized Persons Act, the state’s decision to deprive Mr. Gutierrez of the opportunity to be accompanied during his execution by a religious adviser employed by the prison substantially burdens the exercise of his religion, requiring the state to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, for purposes of the free exercise clause, the state’s blanket policy of denying all prisoners the aid of a religious adviser at the time of the execution — adopted for the acknowledged purpose of avoiding the obligation to allow such a minister to a Buddhist prisoner — burdens Mr. Gutierrez’s exercise of religion without legitimate justification.
(relisted after the Jan. 8 conference)

Massachusetts Lobstermen’s Association v. Ross, 20-97
Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Act’s “smallest area” requirement, including designating ocean monuments larger than most states, by vaguely referencing “resources” or an “ecosystem” as the objects to be protected.
(relisted after the Jan. 8 conference)

Harris v. Maryland, 20-101
Issue: Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
(relisted after the Jan. 8 conference)

Johnson v. Precythe, 20-287
Issues: (1) Whether Bucklew v. Precythe established a categorical rule that a state may obtain dismissal of an Eighth Amendment method-of-execution claim by proffering a reason for rejecting the plaintiff’s opposed alternative method of execution that is legitimate in the abstract, regardless of whether the plaintiff has plausibly alleged that the state’s proffered reason is not legitimate or sufficient on the facts of the case; and (2) whether, in the alternative, the U.S. Court of Appeals for the 8th Circuit’s refusal to permit Ernest Johnson, after the Supreme Court’s decision in Bucklew was issued, to amend his complaint to propose a previously-used alternative method of execution warrants summary reversal.
(relisted after the Jan. 8 conference)

Planned Parenthood Center for Choice v. Abbott, 20-305
Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the 5th Circuit’s judgments granting writs of mandamus.
(relisted after the Jan. 8 conference)

United States v. Tsarnaev, 20-443
Issues: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
(relisted after the Jan. 8 conference)

Republican Party of Pennsylvania v. Boockvar, 20-542
Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
(relisted after the Jan. 8 conference)

Scarnati v. Pennsylvania Democratic Party, 20-574
Issues: (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
(relisted after the Jan. 8 conference)

Returning Relists

Silver v. United States, 20-60
Issues: Whether a public official can be convicted of bribery absent proof of an agreed exchange with the alleged bribe payor, based solely on his unexpressed, unilateral state of mind when receiving a benefit; (2) whether a conviction for Hobbs Act extortion can be based on a theory of simple bribery; and (3) whether, if the government elects not to argue harmless error, a court of appeals may raise harmless error sua sponte, without providing the defendant any opportunity to be heard on the issue.
(relisted after the Dec. 4, Dec. 11 and Jan. 8 conferences)

Kane County, Utah v. United States, 20-82
Issues: (1) Whether Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention as of right where the movant does not have a significant, cognizable interest in the lawsuit; and (2) whether the United States adequately represents its title, which is the only interest at issue in a quiet title suit.
(relisted after the Dec. 4, Dec. 11 and Jan. 8 conferences)

United States v. Kane County, Utah, 20-96
Issue: Whether an advocacy organization’s environmental concerns qualify as an “interest” required by Rule 24(a)(2) of the Federal Rules of Civil Procedure for the organization to intervene as of right as a party defendant in a pending civil action, where no judicial relief could be granted against that organization in the action and its environmental concerns are unrelated to any claim or defense that the organization could itself assert in the action.
(relisted after the Dec. 4, Dec. 11 and Jan. 8 conferences)

Trump v. Knight First Amendment Institute, 20-197
Issue: Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
(relisted after the Dec. 4, Dec. 11 and Jan. 8 conferences)

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11 and Jan. 8 conferences) [NB: the parties have reached an agreement in principle to settle]

United States v. Vaello-Madero, 20-303
Issue: Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.
(relisted after the Dec. 11 and Jan. 8 conferences)