RELIST WATCH

Restrictions on gender-affirming medical care – and assault weapons

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.

After going two conferences without any new relists, the Supreme Court ended the relist drought this week with a vengeance. We have 12 new relists, several of which are potential blockbusters if the court grants review.

Gender-affirming care

Three of the cases involve constitutional challenges brought against state prohibitions on providing gender-affirming care to minors: United States v. Skrmetti, L. W. v. Skrmetti, and Jane Doe 1 v. Kentucky ex rel. Cameron. Last year, Tennessee and Kentucky were among a group of more than 20 states that enacted laws that prohibit giving transgender youths under the age of 18 medical treatment to align their appearance with their gender identity.

Tennessee’s law forbids medical treatments that are intended to allow a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Kentucky’s law prohibits medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, [a] minor’s sex.” Both provisions outlaw a range of treatments, including gender-reassignment surgery. But the challenges before the court specifically concern two nonsurgical treatments: the administration of puberty blockers to stop physical changes brought on by puberty; and hormone therapy, which seeks to produce physiological changes to conform physical appearance with gender identity.

Transgender youths and their parents in both states quickly brought constitutional challenges in federal court, seeking to enjoin the laws before they went into effect. The challengers first argue that the restrictions discriminate on the basis of sex and therefore violate the 14th Amendment’s equal protection clause. They contend that the laws allow the use of puberty blockers and hormone therapy to conform a minor’s appearance to their birth sex, while barring transgender minors from using the same treatments. Second, the challengers argue that the prohibitions violate the 14th Amendment’s due process clause by infringing upon parents’ rights to make medical decisions for their children. The Biden administration intervened on the challengers’ side in the Tennessee case.

Federal district courts in both states granted the challengers’ requests to block the laws from going into effect. Kentucky and Tennessee then asked the U.S. Court of Appeals for the 6th Circuit to lift those orders while they appealed. The court of appeals refused, instead expediting argument. By a split vote, the 6th Circuit then reversed the lower courts’ rulings, concluding that the states were likely to win their appeals. The court thus allowed the laws go into effect.

The Biden administration, together with the Tennessee and Kentucky families, seek reversal of the 6th Circuit’s ruling. All three challengers maintain that the laws violate the equal protection clause, arguing that under Bostock v. Clayton County (in which the Supreme Court held that firing transgender employees on the basis of their gender identity violates federal employment discrimination laws) drawing distinctions on the basis of gender identity constitute prohibited action on the basis of sex. The private challengers also argue that the laws violate the due process clause because the Supreme Court has repeatedly struck down state restrictions on parents’ ability to raise their children as they see fit.

Just last month, the Supreme Court granted Idaho’s request for a partial stay of a lower-court injunction, thus permitting the state’s ban on gender-affirming care to go into effect until the court rules on any cert petition – although the injunction still remained in force as to the plaintiffs in that case, thus permitting the plaintiffs there to receive treatment.

There are some differences in the case – in the Idaho case, the district court’s decision to grant relief beyond the plaintiffs – a so-called “universal injunction” – was more prominent.  But the grant of a stay suggests that a majority of the court believes the issue is certworthy and that the state is likely to succeed. A grant in this case would make next term very interesting indeed.

Assault weapons

In early 2023, Illinois adopted the Protect Illinois Communities Act, which prohibits the possession of assault weapons and high-capacity magazines. The state law’s definition of “assault weapon” essentially followed the federal-law definition. The act prohibits possession of certain semiautomatic pistols and rifles. A semiautomatic rifle falls under the law’s proscriptions if it has a detachable magazine and one or more of the following features: a pistol grip or thumbhole stock; any feature capable of functioning as a protruding grip for the non-trigger hand; a folding, telescoping, thumbhole, or detachable stock or a stock that otherwise enhances the concealability of the weapon; a flash suppressor; a grenade launcher; or a barrel shroud. The definition also includes a semiautomatic rifle with a fixed magazine capacity of more than 10 rounds (except those that accept only .22 caliber rimfire ammunition). Finally, there is a lengthy list of particular models that fall within the scope of the statute, notably all “AK” weapons (modeled after the Russian AK-47) and all “AR” weapons (those modeled after the AR-15). People who owned such weapons before the effective date of the law are permitted to retain them, subject to some geographic restrictions on use; otherwise, possession is a crime. Several Illinois municipalities adopted similar legislation.

Gun owners, dealers, and interest groups brought a number of lawsuits arguing that the law violated their rights under the Second Amendment to keep and bear arms and sought to block the state from enforcing the law. Roughly speaking, plaintiffs in northern Illinois, which is more urban, lost; plaintiffs in southern Illinois, which is more rural, were successful, and a judge there held that the statute was unconstitutional in all its applications and barred the state from enforcing it.

In a consolidated appeal, a divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed the denial of relief for the northern cases and reversed the grant of relief for the southern ones. The panel said that, “[u]sing the tools of history and tradition to which the Supreme Court directed us in [District of Columbia v.] Heller and [New York State Rifle & Pistol Ass’n v.] Bruen,” which instructed courts to look for analogous laws in history when considering the constitutionality of restrictions on the personal right to bear arms, “the state and the affected subdivisions have a strong likelihood of success in the pending litigation.” The 7th Circuit reasoned that “these assault weapons and high-capacity magazines are much more like machineguns and military-grade weaponry” that are not protected by the Second Amendment “than they are like the many different types of firearms that are used for individual self-defense,” and thus they can be regulated or banned.

Six petitions have been filed seeking review of that determination: Harrel v. Raoul, Herrera v. Raoul, Barnett v. Raoul, National Association for Gun Rights v. City of Naperville, Illinois, Langley v. Kelly, and Gun Owners of America, Inc. v. Raoul. Given the ubiquity of AR- and AK-type firearms, this case will likely be a blockbuster if granted.

Environmental law

The Clean Water Act of 1972 regulates the discharge of pollutants into regulated waters. The city and county of San Francisco received a permit from the EPA under the law’s National Pollutant Discharge Elimination System that allowed San Francisco to discharge from its wastewater treatment facility into the Pacific Ocean. San Francisco challenged the terms of its permit, arguing that the permit contained terms so vague that it failed to tell the city how much it needed to limit or treat its discharges to comply with the act, while simultaneously exposing it to liability for violating the permit provisions. After exhausting administrative remedies, San Francisco petitioned the U.S. Court of Appeals for the 9th Circuit for review.

A divided panel of the 9th Circuit denied San Francisco’s petition, concluding that the provisions are not unduly vague and are “consistent with the CWA and its implementing regulations.” In dissent, Judge Daniel Collins concluded that those provisions were “inconsistent with the text of the CWA.” He argued that the permit violated the CWA by making the permittee responsible for maintaining water quality standards without specifying what limitations on discharges would satisfy its responsibility.

San Francisco now seeks review, arguing that the 9th Circuit’s decision conflicts with decisions of the U.S. Court of Appeals for the 2nd Circuit and the Supreme Court itself. The government denies that there’s any such split.

Yes, that Michael Avenatti

Michael Avenatti enjoyed his 15 minutes of fame representing porn star Stormy Daniels in her suit against then-President Donald Trump. Afterwards, while representing youth basketball coach Gary Franklin in sponsorship negotiations with sports clothing company Nike, Avenatti threatened to disclose certain documents (that his client had not authorized him to disclose) unless Nike paid him and a colleague more than $10 million to do an “internal investigation” into sports corruption. Based on the conduct, Avenatti was convicted in federal court of extortion and fraud for depriving his client of his “honest services,” prohibited by 18 U.S.C. § 1346. The U.S. Court of Appeals for the 2nd Circuit affirmed his conviction.

In his petition in Avenatti v. United States, Avenatti raises two claims. First, he argues that 18 U.S.C. § 1346 is void “both on its face and” as applied to him because, as Justice Neil Gorsuch said in his concurring opinion in last year’s Percoco v. United States, “[t]o this day, no one knows what ‘honest-services fraud’ encompasses.” Avenatti claims that he did not defraud his client – he “at worst … abus[ed] his fiduciary duty as Franklin’s attorney by leveraging Franklin’s claims to pursue compensation for himself.” Second, he argues that most courts besides the 2nd Circuit have held that civil litigation conduct — and in particular, an attorney’s settlement demand — cannot support federal criminal extortion liability. Avenetti argues that under the 2nd Circuit’s rule, what would normally be handled by bar discipline is converted into a 20-year felony. The government responds that Avenatti raised neither claim before the court of appeals and that they are therefore procedurally defaulted; and even if they weren’t, those claims are meritless.

The Surpeme Court has long been skeptical of the honest-services fraud statute and the risks of overcriminalizing sharp business dealings, so one or more of the justices is surely taking a close look at this case.

Miranda

Last up is a capital case, Medrano v. Texas. Rodolfo Medrano was a member of a south Texas gang charged with capital murder for the shooting deaths of six rival gang members during a robbery. When Medrano was arrested, he invoked his Miranda rights and told police he wanted to speak to an attorney. Police then spoke to Medrano’s wife and told her (falsely) that he was not believed to be involved and would be released if he spoke to police. She persuaded Medrano to talk, and he confessed to providing the guns. Medrano protested that he only provided guns for a robbery and was not present and did not expect the shootings to occur, but the jury found him criminally responsible. That testimony was then introduced against him at trial, and he was convicted of murder and sentenced to death. His conviction and sentence were affirmed on appeal, and his first petition for state post-conviction relief was denied.

Medrano then filed a second petition for state post-conviction relief, alleging that his Miranda rights were violated because police responded to his invocation of his right to silence by persuading his wife to talk to him. He also argued that expert testimony introduced against him violated his due process rights. The Texas Court of Criminal Appeals concluded that Medrano’s application failed to satisfy a state rule of criminal procedure governing successive petitions, and therefore dismissed his application as an “abuse of the writ” of habeas corpus.

In his petition, Medrano renews his argument that law enforcement officers violated his Miranda rights by using his wife to circumvent his invocation of his right to silence. He also argues that the rule invoked by the Texas Court of Criminal Appeals was not actually an “adequate and independent state ground” precluding review of his petition on the merits. He explains that the rule itself permitted a subsequent petition if the defendant could make a showing that but for a violation of the Constitution, no rational juror could have found him guilty. That condition is satisfied here, Medrano says, because the principal evidence introduced against him was the confession he says was improperly procured. In a supplemental brief, Medrano says that his second question is related to an issue the court will be considering next term in Glossip v. Oklahoma, so at minimum, the court should hold his petition for resolution of that case.

We’ll know more soon. Until next time!

New Relists

L.W. v. Skrmetti, 23-466
Issues: (1) Whether Tennessee’s Senate Bill 1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the 14th Amendment’s equal protection clause; and (2) whether Senate Bill 1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the 14th Amendment’s due process clause.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 conference)

United States v. Skrmetti, 23-477
Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 conference)

Jane Doe 1 v. Kentucky ex rel. Coleman, Attorney General, 23-492
Issues: (1) Whether, under the 14th Amendment’s due process clause, Kentucky Revised Statutes Section 311.372(2), which bans medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex,” should be subjected to heightened scrutiny because it burdens parents’ right to direct the medical treatment of their children; (2) whether, under the 14th Amendment’s equal protection clause, § 311.372(2) should be subjected to heightened scrutiny because it classifies on the basis of sex and transgender status; and (3) whether petitioners are likely to show that § 311.372(2) does not satisfy heightened scrutiny.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 conference)

City and County of San Francisco v. Environmental Protection Agency, 23-753
Issue: Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.
(relisted after the May 16 conference)

Harrel v. Raoul, 23-877
Issues: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes; (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes; and (3) whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.
(relisted after the May 16 conference)

Herrera v. Raoul, 23-878
Issues: (1) Whether semiautomatic rifles and standard handgun and rifle magazines do not count as “Arms” within the ordinary meaning of the Second Amendment’s plain text; and (2) whether there is a broad historical tradition of states banning protected arms and standard magazines from law-abiding citizens’ homes.
(relisted after the May 16 conference)

Barnett v. Raoul, 23-879
Issue: Whether Illinois’ sweeping ban on common and long-lawful arms violates the Second Amendment.
(relisted after the May 16 conference)

National Association for Gun Rights v. City of Naperville, Illinois, 23-880
Issues: (1) Whether the state of Illinois’ ban of certain handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorically unconstitutional; (2) whether the “in common use” test announced in Heller is hopelessly circular and therefore unworkable; and (3) whether the government can ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding-era regulation.
(relisted after the May 16 conference)

Langley v. Kelly, 23-944
Issues: (1) Whether the state of Illinois’ absolute ban of certain commonly owned semi-automatic handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorially unconstitutional; (2) whether the state of Illinois’ absolute ban of all commonly owned semi-automatic handgun magazines over 15 rounds is constitutional in light of the holding in Heller that handgun bans are categorially unconstitutional; and (3) whether the government can ban the sale, purchase, possession, and carriage of certain commonly owned semi-automatic rifles, pistols, shotguns, and standard-capacity firearm magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by Heller and New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
(relisted after the May 16 conference) 

Gun Owners of America, Inc. v. Raoul, 23-1010
Issue: Whether Illinois’ categorical ban on millions of the most commonly owned firearms and ammunition magazines in the nation, including the AR-15 rifle, violates the Second Amendment.
(relisted after the May 16 conference)

Medrano v. Texas, 23-5597
Issues: (1) Whether under all the circumstances, including an officer’s knowing and deliberate deployment of Petitioner’s wife to elicit statements from Petitioner while he was in custody, the falsity of the information the officer gave her to convey to the petitioner, the strength of the incentive he proffered to induce the Petitioner to speak, and the fact that similar tactics were deliberately employed to obtain confessions Petitioner’s codefendants, introduction of the resulting statement Petitioner’s Fifth and Fourteenth Amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) Whether the Texas Court of Criminal Appeals’ determination that the Petitioner’s subsequent petition failed to satisfy the requirements of Article 11.071, § 5(a)(2) was an adequate and independent state ground precluding merits review of his claim where that provision authorizes a subsequent petition when “by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt” and the confession whose constitutionality Petitioner is challenging was the only significant evidence linking him to the capital murder with which he was charged.
(relisted after the May 16 conference)

Avenatti v. United States, 23-6753
Issues: (1) whether 18 U.S.C. § 1346, making it a crime to engage in “honest services fraud,” is void for vagueness; (2); whether civil litigation conduct – in particular, an attorney’s settlement demand – can support federal criminal extortion liability.
(relisted after the May 16 conference)

Returning Relists

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, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Cunningham v. Florida, 23-5171
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Nov. 17, Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Guzman v. Florida, 23-5173
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Crane v. Florida, 23-5455
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Arellano-Ramirez v. Florida, 23-5567
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Jackson v. Florida, 23-5570
Issue:Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Sposato v. Florida, 23-5575
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Morton v. Florida, 23-5579
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Aiken v. Florida, 23-5794
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Enrriquez v. Florida, 23-5965
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Bartee v. Florida, 23-6143
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Manning v. Florida, 23-6049
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12, Apr. 19, Apr. 26, May 9 and May 16 conferences)

Tillman v. Florida, 23-6304
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Apr. 19, Apr. 26, May 9 and May 16 conferences)

Sanon v. Florida, 23-6289
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Apr. 19, Apr. 26, May 9 and May 16 conferences)