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 crossed a lot off its to-do list in the last bunch of relisted cases. It was a good week for the U.S. government. The court granted review in the two likeliest cases – the obviously consequential government petition seeking review of a decision invalidating the funding of the Consumer Financial Protection Bureau and the case involving the construction of the federal drug-sentencing “safety valve” provision, which the government agreed was important and warranted review. But it was interesting that the court has not (yet?) granted the government’s request that briefing of the CFPB case be expedited for decision this term, and that the court rejected the lenders’ conditional cross-petition arguing that it should also consider “two antecedent questions that also are presented” by the decision under review. Also, of the two cases presenting the safety-valve issue, the court took the one the government recommended rather than the petition that claimed it was a better vehicle. Those cases seem likely to be argued in October.
The court denied review on the petition asserting a First Amendment right to learn the names of potential jurors during jury selection and also the petition accusing judges of “treason” for failing to recognize a constitutional limit on Congress’s ability to prohibit intrastate narcotics sales.
All of the other cases will be back again at this Friday’s conference, so there is hope for them yet. But as a statistical matter, four-time relist City of Ocala, Florida v. Rojas, involving the constitutional standing of people who object to government religious messages, is beginning to look more like it will yield an opinion respecting denial rather than an outright grant.
That brings us to this week’s newly relisted cases: There weren’t any. Sorry for stringing you along this long.
Tune in Monday at 9:30 a.m. EST to see if the court adds to the cases that will be argued next term.
May I recommend some reading material?
City of Ocala, Florida v. Rojas, 22-278
Issue: Whether psychic or emotional offense allegedly caused by observation of religious messages is an injury sufficient to confer standing under Article III of the Constitution, including where the offended party deliberately seeks out the exposure in question.
(relisted after the Jan. 13, Jan. 20, Feb. 17 and Feb. 24 conferences)
McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Luczak v. United States, 21-8190
Issue: Whether this Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the Defendant was previously acquitted.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)
Donziger v. United States, 22-274
Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.
(rescheduled before the Jan. 13 conference; relisted after the Jan. 20, Feb. 17 and Feb. 24 conferences)
Brown v. Louisiana, 22-77
Issue: Whether, where a defendant denies participating in a particular criminal act, another person’s confession stating that he and someone else committed the act—without mentioning the defendant—is favorable and material evidence under Brady v. Maryland.
(record requested Oct. 18; relisted after the Feb. 17 and Feb. 24 conferences)
Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, 22-500
Issues: (1) What standard under federal admiralty law governs the enforcement of a choice-of-law clause in a maritime contract; and (2) whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.
(relisted after the Feb. 17 and Feb. 24 conferences)
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