RELIST WATCH

Revenge of the rescheduled cases: Congressional proxy voting, the ministerial exception, and more

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.

Last week’s relists yielded what will likely be the last five cases to be to be argued during the current term. At this Friday’s conference, the Supreme Court will thus begin the process of considering what cases to review next fall during October Term 2022.

On Tuesday, the court denied review in just one of last week’s relists, Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164, which the court had considered at eight consecutive conferences. The case involved a First Amendment challenge to the denial of a tax exemption for a church-owned property occupied by a couple whom the church designated as its ministers. Justice Neil Gorsuch dissented alone, saying he would summarily reverse the judicial decision denying the exemption.

That means all the rest of the relisted potential blockbusters are back again this week. Some have suggested the court is more likely to grant blockbusters when they won’t be heard until next term, because they won’t have to rush the decision in the few months remaining before the court’s summer recess (or, perhaps more cynically, because they’ll have longer before having to confront high-profile, politically freighted decisions). In any event, we’ll have a better idea what is in store when we see the order list after Friday’s conference.

This week we have five new relists. Four of them have something in common: They were rescheduled at least twice before the court relisted them. What’s the difference? When the Supreme Court reschedules a case, that case is moved on the court’s docket from one of the justices’ private conferences to a later one before the justices even have the opportunity to discuss it at conference. By contrast, a relisted case is moved from one conference to another (usually the very next one) only after they have had the opportunity to discuss it at conference. I’ve linked dockets of a rescheduled case and a relisted case so you can see how both work.

As a practical matter, the distinction between rescheduling and relisting is great. Relisted cases — particularly newly relisted ones — are much more likely to be granted. Rescheduled cases, by contrast, overwhelmingly wind up being denied, sometimes with a justice writing an opinion respecting denial. So it’s unusual to have so many cases moving from the unhappy status of serial rescheduling to the happy status of being relisted. 

Most noteworthy of the formerly rescheduled cases is McCarthy v. Pelosi, 21-395 — heck, the caption alone should raise some eyebrows. Because of the public health emergency of the COVID-19 pandemic, the House of Representatives in May 2020 for the first time ever allowed absent members to delegate another member to vote on their behalf. House Minority Leader Kevin McCarthy, R-Calif., and other representatives filed suit arguing that the Constitution requires in-person congressional voting. The district court and U.S. Court of Appeals for the District of Columbia Circuit rejected these claims on the ground that the Constitution’s speech-or-debate clause prohibits judicial review of legislative actions such as voting. In his petition, McCarthy maintains that the clause does not foreclose all judicial review and that other constitutional provisions, such as the quorum clause, indicate that physical attendance is a constitutional requirement.

Gordon College v. DeWeese-Boyd, 21-145, involves the First Amendment-based “ministerial exception,” most recently seen in Our Lady of Guadalupe School v. Morrissey-Berru, under which employees deemed “ministers” of religious institutions are not covered by various employment and discrimination laws. This case involves Margaret DeWeese-Boyd, an associate professor of social work at Gordon College, a private Christian liberal arts college in Wenham, Massachusetts. The Massachusetts Supreme Judicial (is there any other kind?) Court held that DeWeese-Boyd’s duties as an associate professor of social work differ significantly from cases where courts have applied the ministerial exception, as she did not teach religion or religious texts, lead her students in prayer, take students to chapel services or other religious services, deliver sermons at chapel services, or select liturgy, which the court concluded have been important factors in the Supreme Court’s functional analysis of who is a “minister.” Gordon College seeks review, arguing that all of its professors are Christian educators who are used to promote the Christian mission through teaching, scholarship, and service. The case has already been rescheduled three times, clearly indicating it’s on at least one of the justices’ radar.

Next up is Texas v. Commissioner of Internal Revenue, 21-379, which has been rescheduled twice.  In 1981, Congress passed a statute requiring that reimbursement rates paid to organizations for managing state Medicaid plans must be “actuarially sound.” In 2002, the Centers for Medicare & Medicaid Services promulgated a regulation identifying three criteria that “[a]ctuarially sound” payments must satisfy: the payment amounts must “[h]ave been developed in accordance with generally accepted actuarial principles”; those amounts must be “appropriate for the populations to be covered, and the services to be furnished”; and, at issue here, the payment amounts must “[h]ave been certified, as meeting th[ose] requirements …, by actuaries who meet the qualification standards established by the American Academy of Actuaries and follow the practice standards established by the Actuarial Standards Board.” The actuarial board did not adopt a binding definition until 2015 — 13 years after CMS promulgated the regulation. 

Soon afterwards, the states of Texas, Indiana, Kansas, Louisiana, and Nebraska filed suit, arguing that the definition that the actuarial group adopted “foist[ed] nearly $500 million of taxes” onto the states in just three years because of a fee that the Affordable Care Act imposed (but which was repealed in 2019). The district court granted the states summary judgment, concluding that the actuarial-certification rule is an impermissible delegation of legislative power and exceeded CMS’ statutory authority. The U.S. Court of Appeals for the 5th Circuit reversed in relevant part, rejecting the states’ nondelegation challenge; the court also concluded other claims were time-barred because the states acted more than a decade after CMS promulgated the rule. Five judges dissented from the denial of rehearing en banc.

Before the Supreme Court, the states argue that an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine, and that the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity should start running not when the agency delegates the authority, but when the private entity exercises the delegated authority. 

Axon Enterprise, Inc. v. Federal Trade Commission, 21-86, involves the manufacturer of the law-enforcement device immortalized in the formerly trademarked phrase, “Don’t tase me, bro!” After Axon Enterprise acquired a competitor, it found itself subjected to antitrust review by the Federal Trade Commission. The company faced a series of demands from the FTC it viewed as unreasonable. Facing the prospect of litigating the agency’s antitrust enforcement action before FTC administrative law judges, who are insulated from removal by “double for-cause” restrictions (meaning that both the ALJs and their supervisors are subject to for-cause removal restrictions), a structure that the Supreme Court held unconstitutional in Free Enterprise Fund v. Public Company Accounting Oversight Board. Rather than go through an administrative enforcement process it considered unacceptable, Axon filed suit in district court seeking to enjoin FTC proceedings as unconstitutional. That lawsuit focused on constitutional issues collateral to the underlying antitrust issues.  

The district court dismissed the suit for want of jurisdiction, concluding that Congress had implicitly precluded district-court jurisdiction over such actions by creating an alternative review scheme that bypasses district courts and vests judicial review of FTC cease-and-desist orders directly in the courts of appeals. A divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed. The majority noted that “every other circuit that has addressed a similar issue” has concluded that district courts lack jurisdiction. But even the majority acknowledged that, “[a]s the dissent cogently points out, it makes little sense to force a party to undergo a burdensome administrative proceeding to raise a constitutional challenge against the agency’s structure before it can seek review from the court of appeals,” and it said that if the court “were writing on a clean slate, [it] would agree with the dissent.” Judge Patrick Bumatay, in dissent, argued that district courts properly have jurisdiction over certain due process and equal protection challenges Axon asserted, as well as over its constitutional challenges to the tenure protections afforded to FTC ALJs. Before the Supreme Court, Axon argues as a statutory matter that Congress did not deprive district courts of jurisdiction over such claims, and argues that the structure of the FTC, including its dual-layer for-cause removal restrictions for ALJs, violates the Constitution.

Last up: Looks like Oklahoma will have to update its environmental impact statement for its blizzard of petitions seeking to overrule the Supreme Court’s decision in McGirt v. Oklahoma holding that eastern Oklahoma remains a Native American reservation, because there is yet another relisted case raising the issue: Oklahoma v. Perales, 21-704.  And just for the record, in addition to its 34 relisted petitions, Oklahoma has still more petitions raising the very same issue that are scheduled to be considered at conference for the first time this Friday. If the relists continue, those cases will be mentioned in future installments.

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

New Relists

Axon Enterprise, Inc. v. Federal Trade Commission, 21-86
Issues: (1) Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and desist orders; and (2) whether, on the merits, the structure of the Federal Trade Commission, including the dual-layer for-cause removal protections afforded its administrative law judges, is consistent with the Constitution.
(rescheduled before the Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

Gordon College v. DeWeese-Boyd, 21-145
Issues: (1) Whether professors at religious colleges perform ministerial functions when the college exists to spread its faith, and the college requires faculty, as a primary component of their position, to integrate Christian doctrine into their work and academic disciplines, engage in teaching and scholarship from a decidedly religious perspective, and serve as advisors and mentors for student spiritual formation; and (2) whether the First Amendment requires courts to defer to the good-faith characterization of a ministerial position by a religious organization or church. 
(rescheduled before the Dec. 3, Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

Texas v. Commissioner of Internal Revenue, 21-379
Issues: (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.
(rescheduled before the Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14 conference)

McCarthy v. Pelosi, 21-395
Issue: Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.
(rescheduled before the Dec. 10 and Jan 7 conferences; relisted after the Jan. 14 conference)

Oklahoma v. Perales, 21-704
Issue: Whether McGirt v. Oklahoma should be overruled.
(relisted after the Jan. 14 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, Jan. 7 and Jan. 14 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, Jan. 7 and Jan. 14 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, Jan. 7 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences) 

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)

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 and Jan. 14 conferences)