RELIST WATCH

OT2023’s last grants?

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.

At last week’s conference, the Supreme Court had 472 petitions and applications before it – including three new relists, which yielded (so far) zero grants. On Monday the court denied review in the relisted climate change case, but all of last week’s other relists are back again this week.

This week’s conference is much smaller, involving only 71 petitions and applications. But the number of new relists is much higher: The court will be taking a second look at nine cases. In some ways, that is to be expected. The court typically casts a broad net at the second January conference, because it’s usually the last conference at which cases can be granted and heard during the April argument session without expedited briefing. So this week’s list likely includes the last of the grants to be decided this term.

With such a heavy caseload, the descriptions will be somewhat summary. The most high-profile case of the bunch is City of Grants Pass, Oregon v. Johnson, which has gained some media attention. A divided panel of the U.S. Court of Appeals for the 9th Circuit held that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the Constitution for the city of Grants Pass, Oregon, to enforce its anti-camping ordinance against homeless people when the local homeless population outstrips the capacity of local homeless shelters.

Fifteen judges dissented from the 9th Circuit’s refusal to rehear the case en banc. Grants Pass now petitions for review, arguing that the 9th Circuit’s decision is not only egregiously wrong, but entrenches a circuit split. Underscoring the importance of the issue, 24 briefs have been filed by an array of amici, from law enforcementofficials to California Governor Gavin Newsom to the homeless advocates the LA Alliance for Human Rights.

Department of State v. Munoz and Colindres v. Department of State both involve the doctrine of consular nonreviewability – that is, the jurisprudential principle that a consular official’s decision to deny a visa to a foreigner ordinarily is not subject to judicial review. In Munoz, a divided panel of the 9th Circuit held that the State Department’s decision not to grant U.S. citizen Sandra Munoz’s spouse a visa was subject to judicial review and held that the agency had failed to justify the decision.

In Colindres, the U.S. Court of Appeals for the D.C. Circuit held that Kristen Colindres’s spouse did not burden any fundamental right and thus was not subject to review, and in any event her claim failed on the merits. In a separate concurrence, Chief Judge Sri Srinivasan observed that the issue whether a “the right to marriage includes a protected interest in living with one’s spouse in the country” remains “unsettled in the Supreme Court.”

The government and Kristen Colindres now petition, arguing that the issue implicates circuit splits on two important issues. The government argues that Munoz is “the superior vehicle” for resolving the issue. I rate this issue a likely grant.

Most of the remaining issues are the sorts of discrete, workaday issues that may be appealing to a court that finds its docket loaded with high–profile cases. 

Consider Starbucks Corp. v. McKinney. Under the National Labor Relations Act, the National Labor Relations Board issues, prosecutes, and adjudicates complaints alleging that employers committed unfair labor practices. Section 10(j) of the Act authorizes the agency, while the NLRB adjudication is ongoing, to petition district courts “for appropriate temporary relief or restraining order” and grants district courts the power to “grant to the Board such temporary relief or restraining order as it deems just and proper.”

The NLRB accused Starbucks of interfering with lawful efforts by barristas in Memphis to unionize, and the NLRB successfully obtained a preliminary injunction that (among other things) required the coffee chain to temporarily reinstate workers that it had fired.

On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed, applying circuit precedent that used a two-factor test which looks to whether (1) there is “reasonable cause to believe that an unfair labor practice has occurred” and (2) “injunctive relief is ‘just and proper.’” But Judge Chad Readler concurred separately, calling that standard “misguided” and arguing that it conflicted with Supreme Court precedent and the emerging consensus of other courts of appeals that looks to the usual four-part test for injunctive relief.

Starbucks now petitions for review, echoing those themes. The government contends that there is no split, that different courts of appeals merely “use different verbal formulations,” and that the usual four-factor test gives insufficient deference to the NLRB’s expertise.

Smith v. Spizzirri presents a discrete issue about arbitration law. Section 3 of the Federal Arbitration Act provides that “[i]f any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration …, the court in which such suit is pending, … shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.”

Despite the plain language of that provision, the U.S. Courts of Appeals for the 1st, 5th, 8th and 9th Circuits have held that such suits can be dismissed when all claims are subject to arbitration. Acting in accordance with circuit precedent, the 9th Circuit dismissed delivery driver Wendy Smith’s suit against the company she worked with. But Judge Susan Graber, joined by Judge Roopali Desai, concurred separately to “encourage the Supreme Court to take up this question.” This seems like a likely grant.

Williams v. Washington presents a similarly discrete issue about claims brought in state court under 42 U.S.C. § 1983. Nancy Williams and others brought suit under Section 1983 in Alabama state court, complaining about delays in the processing of unemployment benefits. The Alabama Supreme Court affirmed the trial court’s dismissal of the case, holding that the Alabama “Legislature has prohibited courts from exercising jurisdiction over the plaintiffs’ claims at this stage” before the claimants had exhausted their administrative remedies.

Before the Supreme Court, Williams contends that exhaustion of administrative remedies is not required under Section 1983, and that the Alabama court’s decision to the contrary conflicts with decisions of the Supreme Court and other state high courts.

Now on to the capital cases docket. The Supreme Court held in Atkins v. Virginia that it violates the 8th Amendment’s prohibition on cruel and unusual punishments to subject intellectually disabled offenders to capital punishment. Then the court in Hall v. Florida and Moore v. Texas adopted a definition of intellectual disability that looked to (among other factors) “significantly subaverage intellectual functioning,” and in particular, IQ testing and whether “the lower end of [the offender’s] score range falls at or below 70.”

Joseph Clifton Smith was convicted and sentenced to death for murdering Durk Van Dam so he could steal his boots, tools, and $140. In repeated IQ tests, Smith scored 78, 75, 74, 74, and 72. On habeas review, the district court held that Smith was intellectually disabled, noting among other things that because his 72 score had a 3-point margin of error, his IQ could be as low as 69. The U.S. Court of Appeals for the 11th Circuit affirmed.

In Hamm v. Smith, Alabama argues that the record is inadequate to prove intellectual disability because only the lowest of Smith’s five tests satisfies the threshold, and only then at the outer limit of the standard of error. In addition, Alabama asks the justices to overrule Hall and Moore or at least clarify that those cases permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s margin of error.

Lastly, there are two separate cases concerning the striking of potential jurors.

Compton v. Texas is also on the court’s capital docket. Dillion Gage Compton, who is  Black, was convicted of murdering a white female corrections officer and sentenced to death. He argues that at his trial, Texas discriminatorily struck female and nonwhite prospective jurors in violation of the 14th Amendment, leaving him with a jury that was heavily male and overwhelmingly white. Although the Supreme Court has relisted the case for this Friday’s conference, the court is unlikely to act on the case this week because it also has called for the record, which has not arrived.

Missouri Department of Corrections v. Finney involves an employment-discrimination suit brought by a lesbian corrections officer against the Missouri Department of Corrections. During the jury screening, Jean Finney’s counsel asked whether prospective jurors were affiliated with “a religious organization growing up where it was taught that people who are homosexuals shouldn’t have the same rights as everyone else because it was a sin.” Although the jurors who responded that they believed homosexuality to be a sin said they could be “fair and impartial,” the court struck them anyway “to err on the side of caution.”

The Missouri Court of Appeals affirmed, holding that the judge’s decision to strike the jurors was proper because it was based on their “strong views on homosexuality” rather than the fact that they were religious – for example, the court noted, the trial judge seated self-identified Christians who did not express views on homosexuality. And the court noted that the Department of Corrections had not adequately preserved the claim and so it was subject to only plain error review. Before the Supreme Court, the Missouri Department of Corrections argues that the 14th Amendment prohibits courts from relying on “stereotypes about religious views to strike jurors,” just as it prohibits striking jurors based on race or sex. 

That’s all for now. Grants could come as early as Friday afternoon, so stay tuned!

New Relists

Smith v. Spizzirri, 22-1218
Issue: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.
(relisted after the Jan. 5 conference)

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5 conference)

City of Grants Pass, Oregon v. Johnson, 23-175 
Issue: Whether the enforcement of generally applicable laws regulating camping on public property constitutes “cruel and unusual punishment” prohibited by the Eighth Amendment.
(relisted after the Jan. 5 conference) 

Williams v. Washington, 23-191
Issue: Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.
(relisted after the Jan. 5 conference)

Missouri Dept. of Corrections v. Finney, 23-203
Issues: (1) Whether the 14th Amendment prohibits relying on stereotypes about religious views to strike jurors; (2) whether a violation under Batson v. Kentucky is structural or is subject to harmless-error review; and (3) whether, in the context of jury selection, the 14th Amendment protects both religious status and religious belief, religious status only, or neither.
(relisted after the Jan. 5 conference) 

Dept. of State v. Munoz, 23-334
Issues: (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under Ssuffices to provide any process that is due; and (3) whether, assuming that such a constitutional interest exists and that citing Section 1182(a)(3)(A)(ii) is insufficient standing alone, due process requires the government to provide a further factual basis for the visa denial “within a reasonable time,” or else forfeit the ability to invoke consular nonreviewability in court.
(relisted after the Jan. 5 conference)

Starbucks Corp. v. McKinney, 23-367
Issue: Whether courts must evaluate the National Labor Relations Board’s requests for injunctions under Section 10(j) of the National Labor Relations Act using the traditional, stringent, four-factor test for preliminary injunctions or some other more lenient standard.
(relisted after the Jan. 5 conference) 

Colindres v. Dept. of State, 23-348 
Issue: Whether the doctrine of consular nonreviewability insulates from judicial review a consular decision that lacks both a facially legitimate and bona fide basis; provides no discrete factual predicate; applies an unconstitutionally vague statutory provision of the Immigration and Nationality Act; and transgresses multiple bedrock constitutional limitations, including procedural and substantive due process rights, entitlement to equal protection of the laws, rights to freedom of speech and expressive activity, the fundamental, associational, and marital right to live together as Husband and Wife, and the United States citizen spouse’s fundamental liberty interest in residing in her country of citizenship.
(relisted after the Jan. 5 conference)

Compton v. Texas, 23-5682
Issues: (1) Whether a court’s comparison of generalizations about all the female prospective jurors who were struck by the prosecution with generalizations about the male jurors not struck by the prosecution, rather than a side-by-side analysis of individual jurors, disregards the basic equal protection principle that one discriminatory strike is too many; (2) whether Texas exercised its peremptory strikes in a prohibited discriminatory fashion.
(relisted after the Jan. 5 conference)

Returning Relists

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8 and Jan. 5 conferences; rescheduled before the Dec. 1 conference)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8 and Jan. 5 conferences; rescheduled before the Dec. 1 conference)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, May 11 and Dec. 1 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8 and Jan. 5 conferences; rescheduled before the Dec. 1 conference) 

Glossip v. Oklahoma, 22-7466 
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9, Nov. 17, Dec. 8 and Jan. 5 conferences; rescheduled before the Dec. 1 conference)

Speech First, Inc. v. Sands, 23-156
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17, Dec. 8 and Jan. 5 conferences; rescheduled before the Dec. 1 conference)

Coalition for TJ v. Fairfax County School Board, 23-170
Issue: Whether the Fairfax County School Board violated the 14th Amendment’s equal protection clause when it overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology.
(relisted after the Dec. 8 and Jan. 5 conferences)

Alaska v. Alaska State Employees Association, 23-179
Issue: Whether the First Amendment prohibits a state from taking money from employees’ paychecks to subsidize union speech when the state lacks sufficient evidence that the employees knowingly and voluntarily waived their First Amendment rights.
(relisted after the Dec. 8 and Jan. 5 conferences)