RELIST WATCH

Blockbuster watch: Affirmative action, same-sex weddings, and other big relists

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.

At this Friday’s conference, the Supreme Court will vote to grant the last cases that will be argued this term (barring expedited briefing on some emergency matter). The court has an unusual number of relists this week, including an unusual number of cases that would be blockbusters if the court decides to take them. There are so many relists — 17 cases, and that’s if you only count a cluster of 33 (!) Oklahoma cases as a single case — that I have to be extremely summary. It’s like the long conference in January.

I could reach the limit of our Twitter-shortened attention spans just talking about relists that explicitly ask the Supreme Court to overrule its precedents. There are a pair of cases asking the court to invalidate Harvard’s and the University of North Carolina’s affirmative action programs, and in the process overrule Grutter v. Bollinger, which upheld diversity-based affirmative action programs. The cases are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina, 21-707. The court earlier asked for the U.S. solicitor general to weigh in on the Harvard case; she recommended that the court deny review, saying that the challengers “seek[] to relitigate … case-specific factual disputes that both lower courts resolved against” them and that the case would be “a poor vehicle for reconsidering Grutter.” We’ll see if the court is persuaded.

Then there’s 303 Creative LLC v. Elenis, 21-476, presenting a recurring question the court first confronted in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about whether an “artist” (here, a website designer) can be compelled to perform work celebrating a same-sex wedding that is inconsistent with their sincerely held religious beliefs. The case also presents the question whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith. (The court faced but did not decide the issue of whether to overrule Smith in last term’s Fulton v. City of Philadelphia, Pennsylvania.)

Two terms ago, the Supreme Court held by a 5-4 vote in McGirt v. Oklahoma that Congress had not clearly disestablished a Creek Nation reservation covering much of eastern Oklahoma, and thus the area remained Native American territory for the purposes of a federal criminal law, eliminating the state’s ability to prosecute crimes there. With the death of Justice Ruth Bader Ginsburg, who provided a necessary vote to the McGirt majority, and the confirmation of her replacement, Justice Amy Coney Barrett, the state is now asking the court to reverse itself. The state has 33 petitions pending in criminal cases asking that McGirt be overruled — so many petitions they have two petitions just involving respondents named “Jones,” and another two with respondents named “Martin.” The state has designated Oklahoma v. Castro-Huerta, 21-429, the lead petition, but if the court decides to grant review, it could choose a different vehicle. If the court grants review, it may want to ask the parties to brief the additional question whether Oklahoma was required to file an environmental impact statement in view of the sheer tonnage of paper filings.

Moving on to potential blockbusters that don’t explicitly call on the court to overrule precedent. Sackett v. Environmental Protection Agency, 21-454, is a long-running Clean Water Act dispute that has already been the subject of one major Supreme Court decision. The Sacketts are a husband and wife who are challenging the government’s assertion of CWA authority over their home. They invoke Rapanos v. United States — in which a splintered majority of the Supreme Court held that the CWA does not regulate all wetlands. Justice Antonin Scalia, writing for a four-justice plurality, concluded that only wetlands that have a continuous surface water connection to regulated waters may themselves be regulated under the act. Justice Anthony Kennedy concurred only in the judgment, applying a more fact-intensive (critics would say vague) “significant nexus” test. The Sacketts argue that the court should adopt the plurality’s narrower test as the governing standard.

There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuit struck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly “commandeer” the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district court’s judgment that ICWA’s preference for adoptive placement with “other Indian families” and “Indian foster home[s]” violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

In January 2019, the Supreme Court denied a petition for certiorari filed by a football coach at a public high school in Washington state who claimed that he lost his job because he prayed on the field after games. At that time, four justices – Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh – noted that they concurred in the decision to deny review because the factual record was too undeveloped to grant preliminary relief to the coach, emphasizing that they did not “necessarily agree with the decision (much less the opinion) below.” Since then, the district court and U.S. Court of Appeals for the 9th Circuit have again rejected the coach’s claims. In Kennedy v. Bremerton School District, 21-418, Coach Kennedy is back, asking the justices to review whether his conduct is private and protected by the First Amendment.

California has enacted a number of laws over the years that regulate the sale of items — ranging from foie gras to fuel — based on the method of production that the state believes is too carbon-intensive. Challengers regularly argue that such laws violate so-called dormant commerce clause principles by discriminating against (or seeking to alter) disfavored out-of-state production methods. A number of challenges to such laws have reached the court over the years, but National Pork Producers Council v. Ross, 21-468, is the first one since 2014 (the foie gras case) that I can recall being relisted. California bans the sale of pork in the state unless the sow from which it was derived was housed with 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure. Challengers argue that almost no farms satisfy those standards, and farmers almost universally keep sows in individual pens that do not satisfy those standards during the period between weaning and confirmation of pregnancy, “for animal health and business reasons.” Challengers argue that the law is impermissibly extraterritorial because virtually all the pork consumed in California is raised outside the state.

With that, we have to go into full Relist Watch Select™ mode if we are going to have any hope of ever getting through all these relists. The remaining relists raise the following issues. Each of them is fascinating on its own terms; I give them brief treatment only because there is such an embarrassment of riches this week.

• Wisconsin v. Jensen, 21-210: Whether a woman’s statement that if she died, her husband should be considered a suspect, is (after her death) “testimonial” and thus barred under the Sixth Amendment’s confrontation clause
• George v. McDonough, 21-234: Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits based on an agency interpretation that a court later deems inconsistent with the plain text of the governing statute is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.
• Nance v. Ward, 21-439: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
• Vega v. Tekoh, 21-499: Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.
• Shoop v. Twyford, 21-511: Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.
• Love v. Texas, 21-5050: Whether a racially biased juror served on the capital death penalty jury of petitioner Kristopher Love.

That’s all for this week. Until next time, stay safe!

New Relists

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199
Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives. CVSG: 12/8/2021
(relisted after the Jan. 7 conference)

Students for Fair Admissions, Inc. v. University of North Carolina, 21-707
Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
(relisted after the Jan. 7 conference)

Wisconsin v. Jensen, 21-210
Issues: (1) Whether a person’s statement expressing fear about a possible future crime is testimonial under the Sixth Amendment’s confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the person’s statement aimed at ending an ongoing emergency is non-testimonial.
(relisted after the Jan. 7 conference)

George v. McDonough, 21-234
Issue: Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.
(relisted after the Jan. 7 conference) 

Haaland v. Brackeen, 21-376
Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.
(relisted after the Jan. 7 conference)

Cherokee Nation v. Brackeen, 21-377
Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari.
(relisted after the Jan. 7 conference)

Texas v. Haaland, 21-378
Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.
(relisted after the Jan. 7 conference)

Brackeen v. Haaland, 21-380
Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.
(relisted after the Jan. 7 conference)

Kennedy v. Bremerton School District, 21-418
Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.
(relisted after the Jan. 7 conference)

Nance v. Ward, 21-439
Issues: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
(relisted after the Jan. 7 conference)

Sackett v. Environmental Protection Agency, 21-454
Issue: Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.
(relisted after the Jan. 7 conference)

National Pork Producers Council v. Ross, 21-468
Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
(relisted after the Jan. 7 conference)

303 Creative LLC v. Elenis, 21-476
Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.
(relisted after the Jan. 7 conference)

Vega v. Tekoh, 21-499 
Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.
(relisted after the Jan. 7 conference)

Shoop v. Twyford, 21-511
 Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.
(relisted after the Jan. 7 conference)

Love v. Texas, 21-5050
Issues: (1) Whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Love’s rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Love’s rights under the Sixth and 14th Amendments to the United States Constitution.
(relisted after the Jan. 7 conference)

Oklahoma v. Brown, 21-251; Oklahoma v. Kepler, 21-252; Oklahoma v. Hathcoat, 21-253; Oklahoma v. Mitchell, 21-254; Oklahoma v. Jackson, 21-255; Oklahoma v. Starr, 21-257; Oklahoma v. Davis, 21-258; Oklahoma v. Howell, 21-259; Oklahoma v. Bain, 21-319; Oklahoma v. Perry, 21-320; Oklahoma v. Johnson, 21-321; Oklahoma v. Harjo, 21-322; Oklahoma v. Spears, 21-323; Oklahoma v. Grayson, 21-324; Oklahoma v. Janson, 21-325; Oklahoma v. Sizemore, 21-326; Oklahoma v. Ball, 21-327; Oklahoma v. Epperson, 21-369; Oklahoma v. Stewart, 21-370; Oklahoma v. Jones, 21-371 ; Oklahoma v. Cooper, 21-372; Oklahoma v. Beck, 21-373; Oklahoma v. Jones, 21-451; Oklahoma v. McCombs, 21-484; Oklahoma v. McDaniel, 21-485; Oklahoma v. Shriver, 21-486; Oklahoma v. Martin, 21-487; Oklahoma v. Fox, 21-488; Oklahoma v. Cottingham, 21-502; Oklahoma v. Martin, 21-608 
Issue: Whether McGirt v. Oklahoma should be overruled.
(relisted after the Jan. 7 conference)

Oklahoma v. Williams, 21-265; Oklahoma v. Mize, 21-274; Oklahoma v. Castro-Huerta, 21-429
Issues: (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.
(relisted after the Jan. 7 conference) 

Returning Relists

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, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 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, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 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, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Arrow Highway Steel, Inc. v. Dubin, 21-27
Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a state’s neutral, non-discriminatory tolling statute to defeat the enforcement of a former resident’s stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.
(relisted after the Dec. 3, Dec. 10, and Jan 7 conferences)