RELIST WATCH

The independent state legislature theory and more on jurisdiction

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.

This week’s conference represents the Supreme Court’s last currently scheduled conference. But if the past is any guide, the relist fun won’t end quite yet. Every June, before the justices leave town, they ordinarily have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference. In recent years, that has overwhelmingly happened on the last Monday of June, which is also when the court usually hands down the last opinions of the term; the resulting order list is usually released the following day.

At this week’s conference, the justices are taking an especially close look at two cases — this week’s newly relisted cases.

We begin with a case that is a potential blockbuster. In Moore v. Harper, the speaker of the North Carolina House of Representatives, Timothy Moore, asks the Supreme Court to consider what has come to be known as the “independent state legislature” theory — which holds that the Constitution gives state legislatures alone the power to regulate federal elections in their states, without the oversight of state courts. Moore notes that the Constitution’s elections clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Moore argues that unlike other constitutional provisions, the clause does not refer to the state itself, but a particular institution of government.

Last November, the North Carolina legislature enacted a new map for congressional elections in response to the 2020 U.S. Census data. Respondent Rebecca Harper and 25 other North Carolina voters sued in state court to prevent the new map from taking effect, arguing that the map violated various provisions of the North Carolina constitution and represented an unlawful partisan gerrymander. In February 2022, the North Carolina Supreme Court enjoined the new map, concluding that although the state legislature “has the duty to apportion North Carolina’s congressional … districts,” the legislature’s “exercise of this power is subject to limitations imposed by other [state] constitutional provisions,” and “the state judiciary … has the responsibility to protect the state constitutional rights of the citizens.” The court further concluded that the map was an unconstitutional partisan gerrymander. On remand, the state trial court issued an order adopting a different congressional map proposed by three court-appointed experts.

Moore and other state legislators then filed an emergency application asking the U.S. Supreme Court to stay the North Carolina Supreme Court’s order invalidating the legislature’s map and to stay the state trial court’s order adopting the replacement map. The justices denied emergency relief. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, filed a dissenting opinion, calling the independent-state-legislature theory “an exceptionally important and recurring question of constitutional law” and saying that “further review of the judgment below may be warranted once a petition for a writ of certiorari is filed.” Justice Brett Kavanaugh concurred in the decision to deny the stay, but he agreed that “if the Court receives petitions for certiorari raising the issue, … the Court should grant certiorari … [and] carefully consider and decide the issue next Term after full briefing and oral argument.” Well, the court has now received Moore’s cert petition, as well as a raft of briefs in opposition to it. The petition is now fully briefed. It only takes four votes to grant review, so the court seems quite likely to take up the issue soon. The only question is whether the court goes with the case now before it, or decides to wait for another case to come along. We should know Monday.

The issue at stake in MOAC Mall Holdings LLC v. Transform Holdco LLC will be familiar to readers of recent columns: When a statute imposes conditions on when judicial powers can be exercised, does failure to comply with the conditions deprive a court of jurisdiction? The court recently granted review on that question in connection with the Quiet Title Act. This week the question returns in the context of bankruptcy. During the bankruptcy of defunct retailer Sears, Roebuck & Co., the bankruptcy court authorized Sears to sell substantially all its assets to respondent Transform Holdco LLC, including its lease in the Twin Cities’ Mall of America. The mall’s owner, petitioner MOAC Mall Holdings, sought to appeal, but the U.S. Court of Appeals for the 2nd Circuit held it lacked jurisdiction under 11 U.S.C. § 363(m). That provision provides that “[t]he reversal or modification on appeal of an authorization … of a sale or lease of property does not affect the validity of a sale or lease” to a good-faith purchaser, “unless such authorization and such sale or lease were stayed pending appeal.” MOAC Mall Holdings says that statute doesn’t satisfy the Supreme Court’s recent cases saying that limitations on judicial relief should not be treated as jurisdictional unless Congress clearly says they are.

The court may be considering whether it needs to intervene again to provide more clarity in this area. Then again, the justices may simply need more time to puzzle over this complex case; after all, just the question presented in the two principal briefs spans four dense pages.

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

New Relists

MOAC Mall Holdings LLC v. Transform Holdco LLC, 21-1270
Issue: Whether Bankruptcy Code Section 363(m) limits the appellate courts’ jurisdiction over any sale order or order deemed “integral” to a sale order, such that it is not subject to waiver, and even when a remedy could be fashioned that does not affect the validity of the sale.
(relisted after the June 16 conference)

Moore v. Harper, 21-1271
Issue: Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives … prescribed … by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
(relisted after the June 16 conference)

Returning Relists

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29, May 12, May 19, May 26, June 2, June 9 and June 16 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29, May 12, May 19, May 26, June 2, June 9 and June 16 conferences)

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12, May 19, May 26, June 2, June 9 and June 16 conferences)

Canales v. Lumpkin, 20-7065
Issues: (1) Whether, for penalty-phase ineffective assistance of counsel violations, Harrington v. Richter “established a substantial likelihood standard for evaluating prejudice” that exceeds the standard in Wiggins v. Smith of a “reasonable probability that at least one juror would have struck a different balance” on whether to punish by death; and (2) whether the U.S. Court of Appeals for the 5th Circuit’s failure to “reweigh the evidence in aggravation against the totality of available mitigating evidence” conflicts with Wiggins and Andrus v. Texas.
(relisted after the June 2, June 9 and June 16 conferences)

Dr. A v. Hochul, 21-1143
Issues: (1) Whether an administrative rule that targets and forbids religious conduct, while permitting otherwise identical secular conduct, is permissible under the free exercise clause; and (2) whether Employment Division v. Smith should be overruled.
(rescheduled before the April 22, April 29, May 12, May 19, May 26 and June 1 conferences; relisted after the June 9 and June 16 conferences)