Relist Watch

Free exercise, greenhouse-gas regulation, and a slew of other relists from the long conference

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’s “long conference,” at which it considers the hundreds of petitions that have built up during its summer recess, always offers an embarrassment of relist riches, and the court’s new term is no exception: There are 18 new relisted cases from this year’s long conference, which took place on Sept. 27. But I’ll be even more summary than usual today because of the press of business.

We finally may have gotten an explanation why the court rescheduled Dignity Health, Inc. v. Minton in July, essentially hanging on to the case over the summer recess. The case involves a Catholic hospital’s religious free exercise defense to a lawsuit brought for refusing to perform a hysterectomy on a transgender patient. It appears the court may have been holding the case so it could be considered with Roman Catholic Diocese of Albany v. Lacewell, a challenge to a New York regulation that requires employers to fund abortions through their employee health plans. Roman Catholic Diocese also invites the court to overrule Employment Division v. Smith, which held that the free exercise clause does not prohibit the enforcement of generally applicable laws that incidentally burden religious conduct. The court considered whether to overrule that decision in Fulton v. City of Philadephia last term, but decided it was unnecessary to resolve and left the question for another day.

In addition, the court relisted:

• Boardman v. Inslee, a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide that data to the union that represents the providers.
• Four cases brought by states and coal producers challenging the authority of the Environmental Protection Agency to regulate greenhouse gases at the national level.
• Three cases brought by doctors convicted of unlawfully dispensing prescription drugs who contend their juries should have been allowed to consider whether the doctors subjectively believed the prescriptions were medically appropriate.
• Three cases involving lawsuits over allegations that police officers used excessive force.
• Epic Systems Corp v. Tata Consultancy Services Ltd., involving whether punitive damages that are twice compensatory damages, and fall within a state’s statutory punitive damages cap, are constitutionally excessive.
• Ysleta del Sur Pueblo v. Texas, involving whether certain Native American tribes’ gaming operations are subject to Texas regulations.
• Arizona v. City and County of San Francisco, California, involving an attempt by 14 states to intervene to defend the Trump administration’s controversial “public charge” immigration rule after the Biden administration declined to defend it in court.

Lastly, the court only rarely grants petitions asking them to reconsider a decision denying review of a case. But the justices have also relisted the rehearing petition filed by a Washington state florist who has argued that requiring her to create custom flower arrangements for same-sex weddings would violate her religious beliefs. The justices turned down the petition for review earlier this year in Arlene’s Flowers Inc. v. Washington. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated that they would have voted to grant the petition; perhaps they are trying to dislodge the additional votes necessary to win rehearing.

New Relists

Arlene’s Flowers Inc. v. Washington, 19-333
Issues: (1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch. 
(certiorari petition relisted after the Jan. 10, 2020, Jan. 17, 2020, Jan. 24, 2020, Feb. 21, 2020, and June 24, 2021 conferences; rehearing petition relisted after the Sept. 27, 2021 conference) 

Coonce v. United States, 19-7862
Issues: (1) Whether, because the age at which a capital defendant became intellectually disabled does not bear on his moral culpability, the U.S. Court of Appeals for the 8th Circuit erred in concluding that the Eighth and Fifth Amendments permit the government to execute the petitioner, Wesley Coonce ― though his 71 I.Q. and severe adaptive deficits otherwise meet the criteria for a medical diagnosis of intellectual disability that would bar his execution under 18 U.S.C. § 3596(c) and Atkins v. Virginia ― solely because his impairment originated at age 20 rather than before age 18; and (2) whether the 8th Circuit erred in concluding, like other circuits but unlike numerous state courts of last resort, that notwithstanding the Supreme Court’s recent teaching concerning the Sixth Amendment’s confrontation clause, its 70-year-old decision in Williams v. New York allows the admission of testimonial hearsay to prove an aggravating factor at a capital sentencing hearing.
(relisted after the Sept. 27 conference)

Ysleta del Sur Pueblo v. Texas, 20-493
Issue: Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations. CVSG: 8/25/2021.
(relisted after the Sept. 27 conference) 

Boardman v. Inslee, 20-1334
Issue: Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.
(relisted after the Sept. 27 conference)

Epic Systems Corp v. Tata Consultancy Services Ltd., 20-1426
Issue: Whether a state statute that expressly caps punitive damages at two times compensatory damages satisfies the notice requirement of the due process clause such that a punitive damages award that complies with the statute is constitutionally sound under the due process clause.
(relisted after the Sept. 27 conference)

Naum v. United States, 20-1480
Issue: Whether the elements of 21 U.S.C. § 841(a)(l) as defined in United States v. Moore, requiring the government to prove unlawful distribution of a controlled substance “outside the usual course of professional practice” and “for other than a legitimate medical purpose” can be applied in the disjunctive, permitting the government to prove only that a prescription was prescribed “outside the usual course of professional practice” or “outside the bounds of professional practice” solely for violation of a professional standard without regard to the medical legitimacy of the medication.
(relisted after the Sept. 27 conference) 

Roman Catholic Diocese of Albany v. Lacewell, 20-1501
Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.
(relisted after the Sept. 27 conference)

West Virginia v. Environmental Protection Agency, 20-1530
Issue: Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements.
(relisted after the Sept. 27 conference)

North American Coal Corporation v. Environmental Protection Agency, 20-1531
Issue: Whether 42 U.S.C. § 7411(d), which authorizes the Environmental Protection Agency to impose standards “for any existing source” based on limits “achievable through the application of the best system of emission reduction” that has been “adequately demonstrated,” grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes.
(relisted after the Sept. 27 conference)

Rivas-Villegas v. Cortesluna, 20-1539
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to Daniel Rivas-Villegas based upon the absence of a constitutional violation, by concluding that pushing a suspect down with a foot and briefly placing a knee against the back of a prone, armed suspect while handcuffing him, could constitute excessive force; and (2) whether the 9th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Rivas-Villegas.
(relisted after the Sept. 27 conference)

City of Tahlequah, Oklahoma v. Bond, 20-1668
Issues: (1) Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and (2) whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.
(relisted after the Sept. 27 conference)

Cortesluna v. Rivas-Villegas, 20-1690
Issue: Whether the U.S. Court of Appeals for the 9th Circuit departed from longstanding procedure and precedent and failed to view video and other evidence in the light most favorable to the plaintiff with respect to the central facts of the case and accepted a version of facts that is a “visible fiction” when it “should have viewed the facts in the light depicted by the videotape” and other evidence.
(relisted after the Sept. 27 conference)

Arizona v. City and County of San Francisco, California, 20-1775
Issues: (1) Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend; (2) whether the Department of Homeland Security’s final rule interpreting the statutory term “public charge” is contrary to law or arbitrary and capricious; and (3) whether the decision below as to the rule should be vacated as moot under United States v. Munsingwear.
(relisted after the Sept. 27 conference)

Westmoreland Mining Holdings LLC v. Environmental Protection Agency, 20-1778
Issues: (1) Whether the Environmental Protection Agency may employ 42 U.S.C. § 7411(d) to impose standards of performance on existing stationary sources that are regulated under the “hazardous air pollutants” program of 42 U.S.C. § 7412; and (2) whether 42 U.S.C. § 7411(d) clearly authorizes the EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation’s energy system.
(relisted after the Sept. 27 conference) 

North Dakota v. Environmental Protection Agency, 20-1780
Issue: Whether the Environmental Protection Agency can promulgate regulations for existing stationary sources that require states to apply binding nationwide “performance standards” at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive states of all implementation and decision making power in creating their Section 111(d) plans.
(relisted after the Sept. 27 conference)

Ruan v. United States, 20-1410
Issue: Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.
(relisted after the Sept. 27 conference)

Denezpi v. United States, 20-7622
Issue: Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.
(relisted after the Sept. 27 conference)

Couch v. United States, 20-7934
Issues: (1) Whether the trial court erred by conflating the valid defense of a crime as an element of that crime in its instruction to the jury regarding a physician alleged to have violated 21 U.S.C. § 841(a); and (2) whether the trial court erred by not explaining or adequately defining “good faith” in its instructions to the jury regarding a Controlled Substances Act case involving a physician.
(relisted after the Sept. 27 conference)

Returning Relist

Dignity Health, Inc. v. Minton, 19-1135
Issues: (1) Whether the free exercise clause of the First Amendment bars a state-law claim that seeks to compel a religiously affiliated hospital to allow medical procedures that violate its longstanding, deeply held religious beliefs; and (2) whether the First Amendment’s free expression and free association guarantees bar a state-law claim that seeks to compel a religiously affiliated hospital to allow — and thereby endorse and be associated with — medical procedures that violate its longstanding, deeply held religious beliefs.
(relisted after the June 24 and Sept. 27 conferences; rescheduled after the July 1 conference)