RELIST WATCH

Fourteen new relists for the end-of-term mop-up conference

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.

Every summer, before the justices leave town for the Supreme Court’s recess, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference (which this year happened on June 20). In recent years, that “mop-up” conference has overwhelmingly happened the day the court hands down the last opinions of the term. True to form, the court held its mop-up conference on Monday after the last hand-downs, and the chief justice announced that orders would be released on Tuesday morning at 9:30 a.m.  

The court considered 65 cases at that conference, most of them cases it had been holding for the court’s last few decisions in argued cases. Most noteworthy of those cases is a large group of cases involving the federal prohibition on felons possessing firearms, 18 U.S.C. § 922(g), which the court was holding for United States v. Rahimi, in which the court held that a person found by a court to pose a credible threat to the safety of another can be temporarily disarmed consistent with the Second Amendment. In the wake of that decision, the United States has filed a brief asking that the court grant review in one of those cases, Garland v. Range. There are numerous other cases pending that raise the same issue. The Range case (and that issue) is a serious contender for merits review.

In addition, 14 of the cases the court considered at the conference were newly relisted. Some of these cases are likely to be the last grants of the 2023-24 term. Because of the shortness of time, I’m not able to give you full write-ups of them; but below are the questions presented. This week’s new relists include a group of cases challenging the Food and Drug Administration’s regulation of vaping products; a constitutional challenge to Congress’s delegation of authority to the Occupational Safety and Health Administration to write workplace-safety standards; two cases addressing the scope and operation of the First Step Act’s sentencing reduction provisions; and one case involving Section 230 – better known as the rule that shaped the internet.

We’ll know more soon. Thanks for tuning in this term, and perhaps I will see you in the fall!

New Relists

King v. Emmons, 23-668
Issues: (1) Whether the Georgia Supreme Court’s decision was based on “an unreasonable determination” of the facts under 28 U.S.C. § 2254(d)(2); and (2) whether the Georgia Supreme Court “unreasonably applied” this court’s decision in Batson v. Kentucky under Section 2254(d)(1).
(rescheduled before the Mar. 28, Apr. 12, Apr. 19, Apr. 26, May 9, May 16, May 23, May 30, June 6, and June 13 conferences; relisted after the June 20 conference)

Magellan Technology, Inc. v. FDA, 23-799
Issue: Whether FDA’s denial of petitioner’s marketing applications for flavored e-cigarettes was arbitrary and capricious where FDA based the denial solely on a previously unannounced requirement for certain types of studies and where FDA ignored other evidence in the applications that FDA previously said was “critical” for marketing authorization.
(relisted after the June 20 conference)

Allstates Refractory Contractors, LLC v. Su, 23-819
Issue: Whether Congress’s delegation of authority to the Occupational Safety and Health Administration to write “reasonably necessary or appropriate” workplace-safety standards violates Article I of the U.S. Constitution.
(rescheduled before the May 30, June 6, and June 13 conferences; relisted after the June 20 conference).

Turtle Mountain Band of Chippewa Indians v. North Dakota Legislative Assembly, 23-847
Issues: (1) Whether this court should vacate the U.S. Court of Appeals for the 8th Circuit’s decision under United States v. Munsingwear, Inc.; and (2) whether state legislators are absolutely immune from civil discovery, including from producing documents and communications that involved or were shared with third parties, or is the state legislative privilege a qualified one, based on principles of comity, that yields where important federal interests are at stake.
(relisted after the June 20 conference)

Lotus Vaping Technologies v. FDA, 23-871
Issue: Whether FDA’s denial of petitioner’s marketing applications for flavored electronic nicotine delivery systems (e-cigarettes) was arbitrary and capricious where FDA based the denial solely on a previously unannounced requirement for certain types of studies and where FDA ignored other evidence in the applications that FDA previously said was “critical” for marketing authorization.
(relisted after the June 20 conference)

Solis-Flores v. Garland, 23-913
Issue: Whether the crime of receiving stolen property constitutes a “crime involving moral turpitude” under the Immigration and Nationality Act.
(relisted after the June 20 conference)

Velazquez v. Garland, 23-929
Issue: When a noncitizen’s voluntary-departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart? (relisted after the June 20 conference)

Doe v. Snap, Inc., 23-961
Issue: Whether 47 U.S.C. § 230 immunizes internet service providers from any suit based on their own tortious misconduct simply because third-party content is also involved.
(rescheduled before the June 13 conference; relisted after the June 20 conference)

Hewitt v. United States, 23-1002
Issue: Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the FSA’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the FSA’s enactment.
(relisted after the June 20 conference)

Food and Drug Administration v. Wages and White Lion Investments, L.L.C., dba Triton Distribution, 23-1038
Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred in setting aside FDA’s denial orders of respondents’ applications for authorization to market new e-cigarette products as arbitrary and capricious.
(relisted after the June 20 conference)

Poe v. Idaho Conservation League, 23-1028
Issue: Whether there is a “discharge of a pollutant” under the Clean Water Act when material already within a regulated waterbody is merely moved or resuspended within that waterbody.
(relisted after the June 20 conference)

Free Speech Coalition, Inc. v. Paxton, 23-1122
Issue: Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this court and other circuits have consistently done.
(relisted after the June 20 conference)

Duffey v. United States, 23-1150
Issue: Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.
(relisted after the June 20 conference)

Logic Technology Development LLC v. FDA, 23-1125
Issues: (1) Whether the Food and Drug Administration’s creation of a new, heightened standard for evaluating already-pending premarket tobacco product applications for certain electronic nicotine delivery systems products was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act; and (2) Whether FDA’s subsequent, retroactive extension of this heightened evidentiary standard to pending premarket tobacco product applications for menthol-flavored e-cigarettes was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
(relisted after the June 20 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, May 16, May 23, May 30, June 6, June 13 and June 20 conferences)

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, May 23, May 30, June 6, June 13 and June 20 conferences)

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, May 23, May 30, June 6, June 13 and June 20 conferences)

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, May 23, May 30, June 6, June 13 and June 20 conferences)

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, May 23, May 30, June 6, June 13 and June 20 conferences)

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, May 23, May 30, June 6, June 13 and June 20 conferences)

 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, May 23, May 30, June 6, June 13 and June 20 conferences)