Relist Watch

Sixth Amendment rights and Title VII accommodations

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court has just over 100 petitions scheduled for consideration at this Friday’s conference. The court will be reviewing six of them for the second time.

Two of those cases, Small v. Memphis Light, Gas & Water, 19-1388, and Dalberiste v. GLE Associates, Inc., 19-1461, involve what accommodations employers must make to employees’ religious observance under Title VII of the Civil Rights Act of 1964. Title VII generally prohibits private employers from discriminating against an individual “because of such individual’s … religion.” The statute provides that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” In Trans World Airlines Inc. v. Hardison, the Supreme Court held that a business suffers “undue hardship” when the employer would have to “bear more than a de minimis cost” to accommodate the employee’s religious practice.

Petitioners Jason Small (a Jehovah’s Witness) and Mitche Dalberiste (a Seventh-Day Adventist) argue that their employers have made inadequate efforts to accommodate their Sabbath observance and attendance of religious services and events, and ask the court to overrule Hardison’s low bar to finding “undue hardship.” The court delayed considering both cases for several months by repeatedly rescheduling them for successive conferences stretching from last fall until late January. In the past, such repeated rescheduling has preceded individual justices’ opinions dissenting from denial of review. But it may be that the justices are now ready to revisit Hardison.

Two other cases involve the Sixth Amendment right of criminal defendants to confront witnesses against them in the context of expert reports. Although the court has decided several cases addressing this subject, there remains considerable confusion about application. In Chavis v. Delaware, 20-317, petitioner Dakai Chavis argues that the Sixth Amendment’s confrontation clause prohibits the introduction of DNA evidence linking him to burglaries through an analyst who has no personal knowledge of statements in a report made by the other analysts involved in the testing. In Taylor v. Illinois, 20-5344, Christopher Taylor challenges the introduction of an autopsy report to convict him of murder without requiring the state to present the testimony of the author.

Smith v. Titus, 20-633, involves another right guaranteed to criminal defendants by the Sixth Amendment: the right to a public trial. On Thanksgiving Day 2012, Byron Smith shot two people who broke into his home, killing them each with a shot at close range as they lay injured. During pretrial hearings that were open to the public and the press, the trial court excluded testimony that one of the two intruders had been involved in earlier burglaries of Smith’s home, on the ground that Smith was unaware of that fact at the time of the killings. Just after the jury was seated, the trial judge briefly closed the courtroom to the press and spectators to discuss its pretrial ruling, for the stated reason of ensuring the jury didn’t learn of that information from press accounts. Smith challenged the courtroom closure on appeal, but the Minnesota Supreme Court upheld it as “administrative in nature” and akin to “what would ordinarily and regularly be discussed in chambers or at a sidebar conference — on the record, but outside the hearing of the public.” Smith then filed a federal habeas corpus petition, but both the district court and the U.S. Court of Appeals for the 8th Circuit upheld the state court decision under the habeas restrictions of the Antiterrorism and Effective Death Penalty Act as “neither contrary to, nor an unreasonable application of, clearly established federal law.” Smith seeks to revisit that determination.

Babcock v. Saul, 20-480, involves an incredibly arcane and complex issue of Social Security benefits designed for employees who accrue retirement benefits under different systems. Petitioner David Babcock was a “dual status” military technician who was a flight instructor with a National Guard unit. When he worked, he contributed to the Civil Service Retirement System rather than Social Security. People who receive pensions from such separate systems ordinarily receive reduced Social Security benefits in light of their separate pension payments. There is an exception to that reduction for payments “based wholly on service as a member of a uniformed service.” In Babcock’s case, the U.S. Court of Appeals for the 6th Circuit joined four other courts of appeals in holding that exception does not apply to dual-status technicians; the U.S. Court of Appeals for the 8th Circuit has concluded that exception does apply, and thus would provide Babcock a higher level of Social Security benefits. The government contends the acknowledged split does not warrant review because it only affects dual-status technicians hired between 1968 and 1984. We should know soon whether Babcock will get relief.

That’s all for this week. Stay safe!

New Relists

Small v. Memphis Light, Gas & Water, 19-1388
Issue: Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets 42 U.S.C. § 2000e(j) – which specifies that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” – and should be overruled.
(rescheduled before the Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 conference)

Dalberiste v. GLE Associates, Inc., 19-1461
Issue: Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an “undue hardship” under Title VII.
(rescheduled before the Oct. 9, Nov. 20, Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences; relisted after the Feb. 19 conference)

Chavis v. Delaware, 20-317
Issue: Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.
(relisted after the Feb. 19 conference)

Babcock v. Saul, 20-480
Issue: Whether a civil service pension received for federal civilian employment as a “military technician (dual status)” is “a payment based wholly on service as a member of a uniformed service” for the purposes of the Social Security Act’s windfall elimination provision.
(relisted after the Feb. 19 conference)

Smith v. Titus, 20-633
Issue: Whether the Sixth Amendment’s public trial guarantee, within the review apparatus imposed by the Antiterrorism and Effective Death Penalty Act of 1996, applies (1) to all phases of a defendant’s criminal trial; or (2) only to pretrial suppression hearings and juror voir dire.
(relisted after the Feb. 19 conference)

Taylor v. Illinois, 20-5344
Issue: Whether a defendant is denied his Sixth Amendment right to be confronted with the witnesses against him when a court admits into evidence a certified autopsy report, without requiring the state to present the testimony of the author, and the state then relies on the author’s observations, not just to show cause of death, but as the sole evidence supporting its argument that the defendant fired two shots, when the defendant consistently denies firing two shots, when his denial is supported by each eyewitness and the physical evidence and when the state’s two-shot theory is crucial to its argument that the defendant committed knowing murder and not a lesser offense.
(relisted after the Feb. 19 conference)

Returning Relists

Biden 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, Jan. 8, Jan. 15, Jan. 22 and Feb. 19 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, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

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, Jan. 8, Jan. 15, Jan. 22 and Feb. 19 conferences)

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, Jan. 15, Jan. 22 and Feb. 19 conferences)

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.
(rescheduled before the Oct. 9, Oct. 16, Oct. 30, Nov. 6, Nov. 13, Nov. 20, Dec. 4 and Dec. 11, conferences; relisted after the Jan. 8, Jan. 15, Jan. 22 and Feb. 19 conferences)

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, Jan. 15, Jan. 22 and Feb. 19 conferences)

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, Jan. 15, Jan. 22 and Feb. 19 conferences)

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, Jan. 15, Jan. 22 and Feb. 19 conferences)

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, Jan. 15, Jan. 22 and Feb. 19 conferences)