RELIST WATCH

Andy Warhol’s artwork, Arizona’s capital sentencing, and more on armed career criminals

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 has newly relisted six petitions this week, raising three groups of issues.

The first petition involves iconic pop-art artist Andy Warhol. Vanity Fair magazine in 1984 commissioned Warhol to create an image of Prince. Warhol cropped a photo by Lynn Goldsmith and created a series of 16 images using it that, according to Warhol, “comment on the manner in which society encounters and consumes celebrity.” Fast forward to 2017. The Andy Warhol Foundation for the Visual Arts (established after the artist’s 1987 death) sued Goldsmith and asked the court for a declaration that Warhol’s work doesn’t violate her copyright in the photo that inspired them because his works were “entirely new creations.”

Goldsmith counterclaimed, arguing Warhol’s work isn’t “transformative” and in the digital world “anyone can easily modify a photograph on a computer to add high contrast, coloration and artifacts.” The district court in July 2019 agreed with the Warhol Foundation that the works were a fair use, but the U.S. Court of Appeals for the 2nd Circuit reversed. It concluded that a work is not transformative if it “recognizably deriv[es] from, and retain[s] the essential elements of, its source material.” Ten days later, the Supreme Court decided Google LLC v. Oracle America Inc., which held that precise copying of computer code could be “transformative” (and thus not prohibited) if it “alter[s] the copyrighted work ‘with new expression, meaning or message.’” The 2nd Circuit granted panel rehearing and issued a revised opinion that still held for Goldsmith; the opinion distinguished Google based on the “unusual context” of computer code and emphasized the visual similarity of Warhol’s work to Goldsmith’s.

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 21-869, the Warhol Foundation (supported by four amicus briefs) seeks Supreme Court review. It argues that the 2nd Circuit’s test conflicts with that adopted by the U.S. Court of Appeals for the 9th Circuit, which emphasizes whether the new work conveys a different meaning or message than the source material. Goldsmith argues that the 2nd Circuit’s test is fact-and context-specific and that contrary to the foundation’s claims, other courts have not held that conveying a different meaning always makes the second work “transformative.” Goldsmith argues that the challenged decision is nonfinal because the case is still ongoing and argues the case does not have the broad implications the foundation claims. Next week we should have a better idea what the justices think.

In 1994, the Supreme Court held in Simmons v. South Carolina that in cases where a capital defendant’s future dangerousness is at issue, due process entitles the defendant to inform the jury that he will be ineligible for parole if not sentenced to death. For many years thereafter, the Arizona Supreme Court refused to apply Simmons. That court believed that Arizona’s sentencing law was sufficiently different from the others the Supreme Court had considered that Simmons did not apply. It relied on the fact that, under state law, capital defendants could receive a life sentence that would make them eligible for “release” after 25 years. But the only kind of release prisoners are eligible for is executive clemency, which is relatively rare and requires an intervening act of the governor. In 2016’s Lynch v. Arizona, the Supreme Court summarily reversed the Arizona Supreme Court’s (mis)application of Simmons and confirmed that the rule applies in Arizona.

The petitions in Cruz v. Arizona, 21-846, and Burns v. Arizona, 21-847, were brought by seven death-row prisoners whose convictions became final after Simmons but before Lynch. All seven prisoners were sentenced to death after their respective trial judges denied them the right under Simmons to inform the jury that they were not eligible for parole. After Lynch applied Simmons to Arizona’s sentencing scheme, Cruz sought postconviction relief in state court seeking the relief under Simmons and Lynch. The Arizona Supreme Court denied Cruz’s claim. Although Arizona provides a forum for federal constitutional claims on collateral review, and although the Arizona Supreme Court recognized that Lynch “was dictated by” Simmons, the court concluded that the rule of Lynch should not apply to cases pending on collateral review. Relying on its decision in State v. Cruz, the Arizona Supreme Court denied review in the other six cases. The justices are now closely reviewing that action.

Earlier this month, the Supreme Court held in Wooden v. United States that criminal defendant William Dale Wooden’s prior convictions for 10 burglary offenses arising from a single night’s burglary of 10 storage units did not occur on different “occasions” from one another and thus counted as only one prior conviction under the Armed Career Criminal Act — and accordingly, Wooden was not eligible for a substantial sentencing enhancement for repeat offenders. Our last three new relists are cases the Supreme Court had held for the disposition in Wooden: Lewis v. United States, 20-7617, Williams v. United States, 20-7798, and Brown v. United States, 21-6448. The three cases involve closely related issues arising out of the Armed Career Criminal Act about whether those petitioners’ prior convictions occurred on different “occasions” and thus count as multiple predicate offenses. It may be that the court simply needs more time to decide how to dispose of the three cases in light of Wooden. There is also some chance that one or more justices is considering whether the court should grant one or more of the petitions as a follow-on to answer questions left unresolved by Wooden, or perhaps to write an opinion inviting petitions addressing the Sixth Amendment implications of the Armed Career Criminal Act. We should know more within a week or so.

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

New Relists

Lewis v. United States, 20-7617
Issues: (1) Whether the First Step Act’s addition of a definition for “felony drug offense” to Section 102 of the Controlled Substances Act also alters the definition of a “serious drug offense” for purposes of applying a sentence enhancement under the Armed Career Criminal Act; and (2) whether the Armed Career Criminal Act, in the absence of a clear statutory definitions of “convictions” and “committed on occasions different from one another,” is unconstitutionally vague.
(relisted after the March 18 conference)

Williams v. United States, 20-7798
Issues: (1) Whether sequential drug transactions over a short time frame are “committed on occasions different from one another” for purposes of the Armed Career Criminal Act when the same undercover law enforcement officer repeatedly bought personal-use amounts of a controlled substance from a suspect; and (2) whether, in the absence of an appeal waiver as part of a plea agreement, a prosecutor’s increased sentencing recommendation and a district court’s imposition of a longer sentence following a defendant’s attempt to preserve objections to a presentence investigation report amount to prosecutorial or judicial vindictiveness, or whether the more onerous recommendation and sentence are legitimate responses to the defendant’s purported failure to accept responsibility for his offense.
(relisted after the March 4 and March 18 conferences)

Cruz v. Arizona, 21-846
Issue: Whether the Supreme Court’s decision in Lynch v. Arizona — confirming that the rule announced in Simmons v. South Carolina (that due process entitles a capital defendant whose future dangerousness is at issue to inform the jury that he will be ineligible for parole if not sentenced to death) applies in Arizona — applied a settled rule of federal law that must be applied to cases pending on collateral review in Arizona.
(relisted after the March 18 conference)

Burns v. Arizona, 21-847 
Issue: Whether the Supreme Court’s decision in Lynch v. Arizona applied a settled rule of federal law that must be applied to cases pending on collateral review in Arizona.
(relisted after the March 18 conference) 

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 21-869
Issue: Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).
(relisted after the March 18 conference)

Brown v. United States, 21-6448
Issues: (1) Whether the courts should employ a purely temporal approach or a “totality of the circumstances” test when interpreting the Armed Career Criminal Act’s phrase, “committed on occasions different from one another”; and (2) whether, in the event that the Supreme Court finds the ACCA’s phrase, “committed on occasions different from one another” ambiguous, it should remand Joseph Brown’s case for resentencing under the provisions of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2).
(relisted after the March 4 and March 18 conferences)

Returning Relists

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, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4 and March 18 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, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4 and March 18 conferences)

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, Jan. 21, Feb. 18, Feb. 25, March 4 and March 18 conferences) 

Reed v. Goertz, 21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
(relisted after the Feb. 18, Feb. 25, March 4 and March 18 conferences)