RELIST WATCH

No new relists, but you should read anyway

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.

All the action on the relist front after the Oct. 15 conference was on the “output” side. The Supreme Court granted review in Ysleta del Sur Pueblo v. Texas, 20-493, involving gaming on Native American lands, and Denezpi v. United States, 20-7622, involving whether the Court of Indian Offenses of the Ute Mountain Ute Agency is a federal agency for purposes of a criminal conviction in that court. The court summarily reversed rulings adverse to police officers in two qualified immunity cases, City of Tahlequah, Oklahoma v. Bond, 20-1668, and Rivas-Villegas v. Cortesluna, 20-1539 (and denied cert in the cross-petition, Cortesluna v. Rivas-Villegas, 20-1690). And finally, the court granted the petition in Abdulla v. Garland, 20-1492, then vacated and remanded for further consideration in light of the federal government’s confession of error, which I discussed in my most recent column.

Perhaps because there is already too much excitement going on now, the Supreme Court did not relist any new cases after the Oct. 15 conference. So at the risk of engaging in “mission creep,” I’ll flag a couple of non-relisted cases that are on for this Friday’s conference that are worthy of attention anyway.

Back in April, the court asked the federal government for its views in Volkswagen Group v. Environmental Protection Commission of Hillsborough County. Volkswagen has asked the court to consider whether the Clean Air Act prevents state and local governments from regulating car manufacturers’ post-sale, nationwide updates to vehicle emissions systems. The solicitor general’s office has now filed its brief. It acknowledges a “shallow conflict” on whether federal law impliedly preempts such causes of action, but recommends the court not take the case. It argues that split “is unlikely to deepen — and may even resolve itself — in light of the court of appeals’ persuasive opinion in this case.” It further contends that “because EPA never directed or approved the updates at issue here, this case would be an unsuitable vehicle for clarifying the preemption rules that would apply in the circumstances that petitioners posit.” We should know soon whether the justices agree.

Knight v. Pennsylvania, 20-7805, is a capital case involving a defendant convicted based on his guilty plea of torturing and murdering an intellectually disabled woman. He was then sentenced to death. Petitioner Melvin Knight argues that although he had multiple IQ tests in the borderline range and a 2012 test that showed him with an IQ of 75, the trial court improperly refused to allow the jury to consider his intellectual disability because that score was not documented before he turned 18. Pennsylvania argues that Knight offered neither lay nor expert testimony that established that he had an intellectual disability and that the trial court’s actions are consistent with Supreme Court precedent. The court called for the record, indicating at least one of the justices is taking a close look at the case. The record has now arrived, and the justices will consider on Friday whether further action is warranted. 

That’s all for this week. We’ll be back next week, hopefully with some new relists. Stay safe!

New Relists

What are you looking here for? You need to learn to focus and be present.

Returning Relists 

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, Sept. 27, Oct. 8 and Oct. 15 conferences; rescheduled after the July 1 conference)

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, Oct. 8 and Oct. 15 conferences) 

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

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, Oct. 8 and Oct. 15 conferences)

American Civil Liberties Union v. United States, 20-1499
Issues: (1) Whether the Foreign Intelligence Surveillance Court, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion; and (2) whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.
(relisted after the Oct. 8 and Oct. 15 conferences)