RELIST WATCH

In a slew of new cases, the justices take in closer look

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’s upcoming conference – the second January conference — is ordinarily the justices’ last opportunity to add new cases to the docket in time for them to review and decide the disputes by the summer recess. That cutoff may have something to do with the large number of new relists this week. While just one of the 420 cases considered at last week’s conference was a new relist, 27 of the 90 cases slated for this conference – nearly one-third of all cases – are new relists. That is nearly twice as many relists as we had after the end-of-summer long conference. The volume is so great that I’ll only be able to discuss a few in detail.

Private nondelegation

Seven of the new relists are challenges to the constitutionality of the Horseracing Integrity and Safety Act, enacted with broad bipartisan support during the waning days of the first Trump administration in an effort to improve safety in the horse-racing industry. Until 2020, the horse-racing industry was governed primarily by the states, resulting in a patchwork of differing regulations. Troubled by the industry’s high rates of injury, death, and use of performance-enhancing drugs, Congress created a private, nonprofit corporation called the Horseracing Integrity and Safety Authority and authorized it to issue nationwide safety and anti-doping rules, monitor state industries for compliance, and sanction or sue violators. The authority is funded primarily through fees on the horseracing industry, collected by the states or by the authority directly. Congress initially gave the Federal Trade Commission limited oversight over the horseracing authority. But in response to legal challenges, Congress amended the law in 2022 to give the FTC the power to make changes to the authority’s rules.

A group of states brought suit in a federal district court in Kentucky, challenging the constitutionality of the HISA and its funding mechanism. They argued that the law was unconstitutional because it delegated federal power to a private company – a concept known as the private nondelegation doctrine. They also argued that forcing the states to fund the authority conscripts state resources to implement a federal program, in violation of a judicial doctrine that bars the federal government from “commandeering” state resources.

The district court dismissed both claims. The U.S. Court of Appeals for the 6th Circuit affirmed, holding that because a federal agency now has the “final say” over how the private horse-racing authority implements the federal statute, the amended law did not impermissibly delegate authority to a private entity. And the 6th Circuit concluded that the annual fees did not represent impermissible “commandeering.” The states sought Supreme Court review, but it was denied. Another challenge brought in Arkansas failed, and the U.S. Court of Appeals for the 8th Circuit affirmed that ruling.

A trade group of thoroughbred racehorse owners and trainers called the National Horsemen’s Benevolent & Protective Association filed a different challenge to the law in Texas. The U.S. Court of Appeals for the 5th Circuit initially ruled that the provisions of the law giving the authority the power to make rules were unconstitutional under the private nondelegation doctrine.

After Congress amended the law to give the FTC the power to make changes to the authority’s rules, the trade group returned to court to renew its challenge. This time, the 5th Circuit concluded that Congress had violated the Constitution by giving the private authority enforcement power – for example, the power to investigate, issue subpoenas, conduct searches, impose fines, and seek injunctions. It reasoned that the authority was not “function[ing] subordinately” to the FTC when it was enforcing the HISA, which violated the private nondelegation doctrine.

The authority came to the Supreme Court last fall, asking the justices to put the 5th Circuit’s ruling on hold to give it time to seek review of that ruling. The authority noted that the FTC has the power both to stop enforcement actions by the authority and to review decisions once they are made. “That is the same framework,” the authority noted, “that has governed the relationship between the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC) for 85 years.”

The Biden administration agreed that the Supreme Court should put the 5th Circuit’s ruling on hold, stressing that the Supreme Court has “long applied a strong presumption in favor of allowing a challenged statute to remain in effect pending judicial review,” particularly when two other federal courts of appeals have upheld the same enforcement provisions.

In a one-paragraph order, the justices granted the authority’s request. Although they did not provide any explanation for their decision, the justices’ grant of preliminary relief is a strong indication that they believed that they would review the 5th Circuit’s decision. Justice Ketanji Brown Jackson wrote in a brief dissent that the authority had not shown any real emergency justifying the court’s intervention at that stage.

The FTC, the authority, Texas, and participants in the horse-racing industry seek review of various aspects of the 5th Circuit’s judgment; the Arkansas challengers seek review of the 8th Circuit’s decision; and Oklahoma, Louisiana, and a group of industry challengers seek reconsideration of the Supreme Court’s decision to deny review of the 6th Circuit decision.

Judicial factfinding for restitution

Under Apprendi v. New Jersey, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” That rule has been broadly applied in a variety of contexts, and in Southern Union Co. v. United States, the court held that juries must find all the facts necessary to impose a criminal fine on the defendant.

But what about the imposition of a criminal restitution order? The lower federal courts have held that criminal restitution can be based on facts found by judges. Two years ago, when the Supreme Court denied review on a petition questioning the legality of that practice, Justices Neil Gorsuch and Sonia Sotomayor dissented. They contended that “it would seem to follow” from Apprendi “that a jury must find any facts necessary to support a (nonzero) restitution order,” and they suggested that the court should take up a lower court ruling to the contrary.

The justices now have the opportunity to act on that suggestion in a trio of petitions filed by two surgeons and the owner of a radiology company, who were convicted of conspiring to pay and receive healthcare bribes and kickbacks. The restitution orders in each of their cases, which ranged in size from $40,000 dollars to $76 million, included amounts allegedly lost by private insurers that were not among the claims submitted to the jury for determination; instead, they were based on facts found solely by a judge. In Rimlawi v. United States, Shah v. United States, and Jacob v. United States, the defendants challenge their restitution orders, arguing that the rule of Southern Union should be extended to the restitution context.

[Disclosure: I am among the counsel to Mrugeshkumar Kumar Shah.]

The constitutionality of assault-weapons bans

On Monday, the justices turned down a challenge to Maryland’s gun-licensing requirement. But the justices did not act on another challenge from Maryland gun-rights advocates, to the constitutionality of Maryland’s ban on assault rifles, such as AK-47s and AR-15s, which the state adopted in 2013 in the wake of several mass shootings using such weapons.

In 2020, a group of Maryland residents, gun-rights groups, and a firearms dealer sued to challenge the ban. Maintaining that they have a constitutional right to possess common assault rifles, such as AR-15s (the best-selling rifle type in America), these challengers argued that a wholesale ban is incompatible with the Second Amendment.

A federal district court rejected this challenge, and the U.S. Court of Appeals for the 4th Circuit affirmed. Both courts relied on an earlier ruling by the 4th Circuit that had upheld other portions of Maryland’s assault-weapons ban on the ground that there is no fundamental right to possess military-style weapons.

The challengers then sought Supreme Court review. The case was put on hold after the Supreme Court announced it would hear argument in New York State Rifle and Pistol Association v. Bruen, involving a challenge to New York’s concealed-carry law. The Supreme Court then issued its landmark ruling in that case, holding that laws restricting the right to bear arms are valid under the Second Amendment only if a tradition of such regulation can be found in U.S. history. The justices then sent the challenge to Maryland’s assault-weapons ban back to the 4th Circuit for reconsideration in light of that decision.

The en banc 4th Circuit upheld the law. Writing for the majority, Judge J. Harvie Wilkinson reasoned that, even after Bruen, the Second Amendment does not protect a right to own assault weapons. But even if the Second Amendment did cover assault rifles, the majority continued, Maryland’s law would still be constitutional because it is consistent with a long history of states regulating dangerous firearms.

Five judges dissented, in an opinion written by Judge Julius Richardson. He argued that the majority’s test was “divorced from the [Second Amendment’s] historic scope” and accused the majority of “cherry-pick[ing] various regulations from the historical record” to piece together an “implausible” reading of “our Nation’s historical tradition of firearms regulation.” He argued that the Second Amendment did not permit banning weapons unless they were both dangerous and uncommon, whereas guns like AR-15s are “commonly possessed by law-abiding citizens for lawful purposes.”

In Snope v. Brown, challengers to the Maryland law argue that the state’s assault-weapons ban is unconstitutional because the Second Amendment protects a right to bear all “arms,” including assault rifles. Further, they contend that Maryland’s outright ban on these weapons is overly restrictive, barring ownership of the most commonly owned assault rifle in the United States.

The state defends the 4th Circuit’s ruling, and it adds that the Supreme Court’s intervention at this point would be premature because the lower courts are only now starting to consider the question of regulating assault weapons in light of Bruen.

It would probably crash the internet to write up all 17 of the other relists, but the questions presented in each of this week’s new relists are set forth below.

New Relists

Rimlawi v. United States, 24-23
Issues: (1) Whether the court of appeals erred in applying the guilt-based approach, rather than the error-based approach, to assess the harmlessness of the confrontation clause error; and (2) whether, under Apprendi v. New Jersey, the facts underlying a restitution award must be proved to, and found by, a jury beyond a reasonable doubt (and, in federal cases, charged in a grand jury indictment).
(Relisted after the Jan. 10 conference.)

Shah v. United States, 24-25
Issue: Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference.)

Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10 conference.)

Pina v. Estate of Jacob Dominguez, 24-152
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred, so as to warrant summary reversal, by refusing qualified immunity without identifying any precedent finding a Fourth Amendment violation based on similar facts and, indeed, overriding its own cases holding an officer would not violate the Constitution under the circumstances the jury found.
(Relisted after the Jan. 10 conference.)

Snope v. Brown, 24-203
Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10 conference.) 

Woodward v. California, 24-227
Issue: Whether the Supreme Court of California’s narrow test for an “acquittal,” limited only to circumstances where the record clearly shows that the judge correctly applied the substantial-evidence standard, conflicts with this court’s precedent under the Fifth Amendment’s double jeopardy clause.
(Relisted after the Jan. 10 conference.)

A.J.T. v. Osseo Area Schools, Independent School District No. 279, 24-249
Issue: Whether the Americans with Disabilities Act of 1990 and Rehabilitation Act of 1973 require children with disabilities to satisfy a uniquely stringent “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education.
(Relisted after the Jan. 10 conference.)

Parrish v. United States, 24-275
Issue: Whether a litigant who files a notice of appeal after the ordinary appeal period under 28 U.S.C. § 2107(a)-(b) expires must file a second, duplicative notice after the appeal period is reopened under subsection (c) of the statute and Federal Rule of Appellate Procedure 4.
(Relisted after the Jan. 10 conference.)

Mahmoud v. Taylor, 24-297
Issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.
(Relisted after the Jan. 10 conference.)

Laboratory Corp of America Holdings v. Davis, 24-304
Issue: Whether a federal court may certify a class action when some of its members lack any Article III injury.
(Relisted after the Jan. 10 conference.)

Soto v. United States, 24-320
Issue: What test courts and agencies should use to determine whether, when a person makes a demand for money from the federal government pursuant to federal statute, that statute includes a settlement procedure that displaces the default procedures and limitations set forth in the Barring Act.
(Relisted after the Jan. 10 conference.)

Franklin v. New York, 24-330
Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10 conference.)

Speech First, Inc. v. Whitten, 24-361
Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.
(Relisted after the Jan. 10 conference.)

Martin v. United States, 24-362
Issue: (1) Whether the Constitution’s supremacy clause bars claims under the Federal Tort Claims Act — a federal statute enacted by Congress — when the negligent or wrongful acts of federal employees “have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law;” and (2) whether the act’s discretionary-function exception bars claims for torts arising from wrong-house raids and similar negligent or wrongful acts by federal employees.
(Relisted after the Jan. 10 conference.)

Oklahoma Statewide Charter School Board v. Drummond, 24-394
Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.
(Relisted after the Jan. 10 conference.)

St. Isidore of Seville Catholic Virtual School v. Drummond, 24-396
Issues: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment’s establishment clause requires.
(Relisted after the Jan. 10 conference.)

Oklahoma v. United States, 23-402
Issues: (1) Whether the Horseracing Integrity and Safety Act of 2020 violates the private nondelegation doctrine; and (2) whether the act violates the anti-commandeering doctrine by coercing states into funding a federal regulatory program.
(Relisted after the Jan. 10 conference.)

Walmsley v. Federal Trade Commission, 24-420
Issues: (1) Whether the Horseracing Integrity and Safety Act unlawfully delegates enforcement power to the Horseracing Integrity and Safety Authority; and (2) whether the act unlawfully delegates rulemaking power to the authority.
(Relisted after the Jan. 10 conference.)

Davis v. Smith, 24-421
Issue: Whether the U.S. Court of Appeals for the 6th Circuit exceeded its powers under the Antiterrorism and Effective Death Penalty Act in concluding that “every fairminded jurist would agree” that the Ohio courts violated the Constitution in refusing to bar testimony from a victim of an attempted murder identifying her attacker.
(Relisted after the Jan. 10 conference.)

Federal Trade Commission v. National Horsemen’s Benevolent and Protective Association, 24-429
Issue: Whether the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 — which allow the Horseracing Integrity and Safety Authority, a private entity, to assist the Federal Trade Commission in enforcing the statute—violate the private nondelegation doctrine on their face.
(Relisted after the Jan. 10 conference.)

Horseracing Integrity and Safety Authority, Inc. v. National Horsemen’s Benevolent and Protective Association, 24-433
Issue: Whether the enforcement provisions of the Horseracing Integrity and Safety Act of 2020 are facially unconstitutional under the private nondelegation doctrine.
(Relisted after the Jan. 10 conference.)

Texas v. Black, 24-465
Issue: Whether Congress has unconstitutionally delegated legislative authority to a private entity in the Horseracing Integrity and Safety Act of 2020.
(Relisted after the Jan. 10 conference.)

National Horsemen’s Benevolent and Protective Association v. Horseracing Integrity and Safety Authority, Inc., 24-472
Issue: Whether the Horseracing Integrity and Safety Act grants legislative power to a private corporation, the Horseracing Integrity and Safety Authority, in violation of Article I, section I, clause I of the Constitution (the “private nondelegation doctrine”) .
(Relisted after the Jan. 10 conference.)

Jimerson v. Lewis, 24-473
Issue: Whether Maryland v. Garrison clearly established that officers violate the Fourth Amendment when they search the wrong house without checking the address or conspicuous features of the house to be searched.
(Relisted after the Jan. 10 conference.)

Gulf Coast Racing, L.L.C. v. Horseracing Integrity and Safety Authority, Inc., 24-489
Issues: (1) Whether Congress can empower a purportedly private nonprofit entity to regulate an entire industry nationwide through rulemaking, adjudication and enforcement powers, and therefore to exercise significant authority pursuant to the laws of the United States, without proper appointments under the appointments clause of the Constitution; and (2) whether statutorily empowering a private nonprofit corporation to regulate an entire industry nationwide through rulemaking, adjudication and enforcement violates the private nondelegation doctrine.
(Relisted after the Jan. 10 conference.)

Jacob v. United States, 24-5032
Issue: Whether the Sixth Amendment reserves to juries the determination of any fact underlying a criminal restitution order.
(Relisted after the Jan. 10 conference.)

Bowe v. United States, 24-5438
Issues: (1) Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; (2) Whether 28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under 28 U.S.C. § 2255.
(Relisted after the Jan. 10 conference.)

Returning Relists

Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)

Turco v. City of Englewood, New Jersey, 23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)

Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)

Carter v. United States, 23-1281
Issues: (1) Whether Feres v. United States should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act and should thus be clarified, limited, or overruled.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences.)

Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13 and Jan. 10 conferences.)