Relist Watch

An important right-to-carry case, and another close look at a Sixth Circuit decision granting habeas relief

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 acted on three relisted petitions Monday. First, it granted review in Cameron v. EMW Women’s Surgical Center, P.S.C., 20-601, involving whether a state attorney general should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state official will defend the law. Because the statute in question is a restriction on abortion, the case is sure to be a high-profile one. Second, as many suspected, in Mays v. Hines, 20-507, the Supreme Court summarily reversed the decision of the U.S. Court of Appeals for the 6th Circuit to grant habeas relief to a convicted murderer, holding that court had been insufficiently deferential to a state court’s determination that Anthony Hines had not suffered constitutionally ineffective assistance of counsel.

Third, the court asked for supplemental briefing in seven-time relist Johnson v. Precythe, 20-287, involving a Missouri death-row inmate’s challenge to the state’s plan to execute him by lethal injection. Ernest Johnson believes that brain surgery he received to treat a tumor creates a substantial risk that the lethal-injection process will cause him to suffer painful and prolonged seizures. Under precedent holding that death-row prisoners who challenge the constitutionality of a method of execution must propose an alternative method, Johnson originally proposed the use of nitrogen gas, which the U.S. Court of Appeals for the 8th Circuit rejected. Johnson asked the Supreme Court to review the 8th Circuit’s holding on nitrogen gas, but he also asked the justices to reverse the 8th Circuit’s ruling that he could not amend his complaint to propose execution by firing squad. After considering Johnson’s petition for review at eight consecutive conferences, the justices ordered Johnson and the state to file short (five-page) briefs on whether — since the district court had dismissed his complaint without prejudice — Johnson could simply file a new complaint suggesting use of a firing squad as an alternative method of execution. Supplemental briefing will be complete in just under a month.

The court has 129 petitions scheduled for review at its next conference, to be held on Thursday. The court will likely be paying special attention to two of them, which are this week’s new relists. The court will be considering them for the second time.

In District of Columbia v. Heller, the court held that the Second Amendment protects an individual’s right to possess firearms at home. Heller left unresolved the extent of Second Amendment protections outside the home. In New York State Rifle & Pistol Association Inc. v. Corlett, 20-843, Robert Nash and Brandon Koch applied for New York licenses to carry firearms outside the home. The licensing officer denied their requests after determining that, under New York law, they had “failed to show ‘proper cause’ to carry a firearm in public for the purpose of self-defense, because [they] did not demonstrate a special need for self-defense that distinguished [them] from the general public.” Nash, Koch and the New York State Rifle & Pistol Association argue that the Second Amendment protects the right to carry a firearm outside the house for self-defense, and they say that the state abridges “a right that the Constitution guarantees to all ‘the people’” when carrying a firearm for self-defense is “deemed a crime unless one can preemptively convince a state official that she enjoys an especially good reason for wanting” to do so.

The Supreme Court hasn’t substantively addressed the lawfulness of firearm restrictions since 2010’s McDonald v. City of Chicago. The court has come close (indeed, it came close last year in a case brought by the same petitioner). And the court has relisted lots of firearms-regulation cases previously, including ones raising the same right-to-carry question here. But it hasn’t granted review. We’ll know soon whether this case will be different.

That brings us to Brown v. Davenport, 20-826. First, some background. In Brecht v. Abrahamson, the Supreme Court held that the test for whether a constitutional error is harmless on habeas review is whether the defendant suffered “actual prejudice.” But Congress later enacted the Antiterrorism and Effective Death Penalty Act, which prohibits habeas relief unless the state court ruling adjudicating its merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.”

Ervine Davenport was unconstitutionally shackled during his state court trial, during which a jury found him guilty of the premeditated murder of Annette White. By a 2-1 vote, the U.S. Court of Appeals for the 6th Circuit held Davenport was entitled to habeas relief. The majority determined that Davenport was entitled to relief under Brecht, and rejected the state of Michigan’s argument that it had to assess whether the state courts had unreasonably applied the standard for harmlessness they had applied on direct review under Chapman v. California. Judge Chad Readler dissented, arguing that the majority’s decision was contrary to 2015’s Davis v. Ayala, which held that “a federal court may not award habeas relief … unless the harmlessness determination itself was unreasonable,” and “a state-court decision is not unreasonable if ‘fairminded jurists could disagree’ on [its] correctness.” (That said, Davis also acknowledged that “the Brecht standard ‘subsumes’ the requirements” of AEDPA “when a federal habeas petitioner contests a state court’s determination that a constitutional error was harmless under Chapman.”) By an 8-7 vote, the 6th Circuit denied rehearing en banc (with conservative judges Jeffrey Sutton and Raymond Kethledge voting with the more liberal judges and concurring separately in the denial of rehearing en banc). Over the dissent of Justice Sonia Sotomayor, the Supreme Court recalled the 6th Circuit’s mandate and stayed the case pending disposition of the cert petition.

This case undoubtedly has the court’s full attention, and the odds are very high the court will review the case. But it remains to be seen whether the court will act summarily, or whether it will order briefing and argument before it further illuminates the correct standard for reviewing harmlessness determinations on habeas.

That’s all for this week. Stay safe!

New Relists

Brown v. Davenport, 20-826
Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.
(relisted after the March 26 conference)

New York State Rifle & Pistol Association, Inc. v. Corlett, 20-843
Issue: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
(relisted after the March 26 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, Feb. 19, Feb. 26, March 5, March 19 and March 26 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]

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, Feb. 19, Feb. 26, March 5, March 19 and March 26 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, Feb. 19, Feb. 26, March 5, March 19 and March 26 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, Feb. 19, Feb. 26, March 5, March 19 and March 26 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, Feb. 19, Feb. 26, March 5 and March 19 conferences; now awaiting supplemental briefing)

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, Feb. 26, March 5, March 19 and March 26 conferences)

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, Feb. 26, March 5, March 19 and March 26 conferences)

United States v. Abu Zubaydah, 20-827
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
(relisted after the March 19 and March 26 conferences)

Woodard v. United States, 20-6387
Issue: Whether, as many courts have held, allowing a prosecution to continue after lengthy and demonstrably prejudicial delay in filing criminal charges offends due process, even absent prosecutorial intent to gain a tactical advantage or harass, when the prosecution cannot provide an explanation for the delay sufficient to justify the extent of the prejudice suffered by the defendant.
(relisted after the March 19 and March 26 conferences)