RELIST WATCH

No new relists — but a preview of a free-exercise issue the court is watching closely

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.

Most people who read Relist Watch — that is, about three of our five current readers — do so because it functions as a preview of future cert grants. This week, there are no new relists, and but for two-time relist Reed v. Goertz, 21-442, the returning cases have all been relisted enough times that they’re more likely at this point to result in some kind of separate opinion than an outright grant. But I think there’s a likely future grant in today’s report; you’ll just have to wait longer than next Monday for that to come to pass.

The court on Monday granted review in four consolidated cases that involve the constitutionality of the Indian Child Welfare Act of 1978. Two of those petitions seek review of a decision of the en banc U.S. Court of Appeals for the 5th Circuit striking down certain provisions as unconstitutional, and two seek to revisit its decision upholding other provisions. The cases were on their fourth relist since January of this year.

Less fortunate was Holcombe v. Florida, 21-53, which the court denied review on after a whopping 10 relists. Petitioner James Holcombe, who was convicted on racketeering charges, argued that he was denied effective representation at trial because his lawyer represented both him and three co-defendants, two of whom were key witnesses at Holcombe’s trial. At trial, even the prosecutors argued that the joint representation was a conflict of interest that Holcombe couldn’t waive, but the trial judge allowed Holcombe’s lawyer to continue representing him even as his other clients testified. Justice Sonia Sotomayor dissented from the denial of review, arguing that the error was so clear under the court’s existing precedents that it would have been appropriate to reverse the state court’s decision affirming his conviction without further briefing or argument.

That brings us to what I think is a likely future grant — and here, I’m speaking of the legal issue rather this particular case (although even this particular case is worth watching closely). Gordon College v. DeWeese-Boyd, 21-145, involved 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. Associate professor Margaret DeWeese-Boyd sued Gordon College, a private Christian liberal arts college in Wenham, Massachusetts, when it did not promote her to a full professorship. The Massachusetts Supreme Judicial Court held that DeWeese-Boyd was not covered by the “ministerial exception” because her 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.” The college sought review, and the court rescheduled the case three times, then relisted it three times, before denying review on Monday.

Justices Samuel Alito (joined by Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barret) filed a statement respecting denial. Although the four agreed that denial was appropriate because it was not clear that the judgment of the state courts was final for purposes of the jurisdictional statute authorizing review, they believed the state court’s decision “reflects a troubling and narrow view of religious education” under which instructors who do not teach religion are still expected to integrate religious faith into their teaching and scholarship. They thus expressed “doubts about the state courts’ understanding of religious education and, accordingly, its application of the ministerial exception.” The four wrote that the case might later ripen into a final decision that would warrant review, stating, “in an appropriate future case, this Court may be required to resolve this important question of religious liberty.”

A very similar foursome (minus Barrett, plus Justice Neil Gorsuch) wrote a similar statement concurring in the denial of review in another free exercise clause case just a few years ago because unresolved issues made review inappropriate “at this stage.” Earlier this year, the court granted review in that case, Kennedy v. Bremerton School District, 21-418. Because it only takes four justices’ affirmative votes to grant review, the foursome’s statement in DeWeese-Boyd suggest it’s worthwhile keeping a close eye on this case as it reaches a conclusion — and others raising the same issue.

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

New Relists

Was there something about the headline you didn’t understand?

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