RELIST WATCH

Legislative intervention to defend a law

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 continues to churn through its relisted cases. On Monday, the court disposed of two more. Petitioner Robyn Morgan got happy news: the Justices decided they wanted Taco Bell — or, at least, they wanted to hear that Taco Bell employee’s petition in Morgan v. Sundance, Inc., 21-328, claiming that the U.S. Court of Appeals for the 8th Circuit has improperly applied a higher standard for proving a defendant has waived arbitration than it applies to other contract clauses. But it was bad news for Volkswagen as the court denied review of both its petitions arguing that the Clean Air Act preempts state and local governments from regulating car manufacturers’ post-sale updates to vehicle emissions systems, the twice-relisted Volkswagen Group v. Environmental Protection Commission of Hillsborough County, 20-994, and Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost, 21-312. What’s the opposite of Fahrvergnügen?

The justices have relisted just one new case this week: Berger v. North Carolina State Conference of the NAACP, 21-248. The case addresses the ability of North Carolina legislators to intervene to defend the state’s voter-ID law from lawsuits under the Constitution and the Voting Rights Act. After the North Carolina State Conference of the NAACP (and several local NAACP branches) challenged the law, the president pro tempore of the state senate and the speaker of the state house of representatives (both Republicans) sought to intervene in the case as state agents under state law. The district court denied intervention without prejudice, noting that the state attorney general (a Democrat) was already defending the lawsuit on behalf of the state, and applying the presumption that the state defendants would adequately defend the law. Six weeks later, the legislative leaders filed a renewed motion for intervention, arguing in part that the attorney general had not vigorously defended the law. The district court again denied intervention. A panel of the U.S. Court of Appeals for the 4th Circuit held that the district court abused its discretion in denying the legislative leaders’ renewed motion for intervention, vacated the district court’s order, and remanded for reconsideration of the leaders’ request. But the 4th Circuit, acting en banc, later affirmed the district court’s denial of the legislators’ attempt on the ground that the state attorney general was adequately defending the law.

In their petition, the legislators argue that the appellate courts are divided about whether a legislator seeking to intervene in a case under a state law must prove that the state’s interest is not adequately represented. They also allege that courts disagree about what standard of review applies to a decision on a motion to intervene as of right. They continue to argue that the state attorney general is not adequately defending the law. The state defendants have filed a brief opposing cert, and the NAACP respondents waived their right to respond. While the court could grant review without calling for a response from all respondents, the court’s more common practice is to call for a response from all respondents before granting review. So there may be more to come here. [Disclosure: My law firm, Arnold & Porter, is among the counsel to the NAACP in this case.]

That’s all on the relist front for this week. We’ll likely be off next week because the court won’t be having a conference next week because of Thanksgiving. It’s still early, but everywhere you look, you see people from up north wearing red suits with white fur trim deciding who has been “naughty” or “nice.” I’m talking, of course, about the Canadian Supreme Court.

Stay safe!

New Relist

Berger v. North Carolina State Conference of the NAACP, 21-248
Issues: (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant; (2) whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation.
(relisted after the Nov. 12 conference)

Returning 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, Oct. 8, Oct. 15, Oct. 29, Nov. 5 and Nov. 12 conferences)

Knight v. Pennsylvania, 20-7805
Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
(relisted after the Oct. 29, Nov. 5, and Nov. 12 conferences)

Holcombe v. Florida, 21-53
Issues: (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
(relisted after the Oct. 29, Nov. 5, and Nov. 12 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164
Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, and Nov. 12 conferences)