Relist Watch
on Jan 18, 2017 at 1:19 pm
John Elwood reviews Tuesday’s relists
There is a point in bleak midwinter when hope is at its lowest ebb and despair at its zenith. I’m talking, of course, about the rerun season that predates the February sweeps. And rerun season is where we find ourselves now.
This week’s conference marks the theoretical “cutoff” for grants that could be argued this term without expedited briefing. But it looks like any new grants at this point will be argued in the fall: Last week’s new relists yielded 16 grants (for 13 hours of oral argument), likely filling up the remaining argument spots for the rest of the current term. Perhaps sensing that they should save their new stuff for the sweeps, the justices this week have given us only a bunch of returning relists. There is one upside to reruns, though: Because the cases are already familiar to our regular readers, it means that once again, we have a flimsy excuse not to provide detailed case descriptions.
Cases that are only on their second relist still have a very good chance of eventually being granted outright. And sometimes, serial relists are granted outright; even six-time-relist Comcast Corp. v. Behrend won a plenary grant, I suspect because a persuasive draft dissent from denial finally dislodged the necessary votes.
But the odds of an eventual plenary grant diminish as a case is repeatedly relisted. Even with a second relist, a case is more likely not to win plenary review but to be a candidate for summary reversal or a dissent from denial of cert. Once a case has been relisted three or more times, the odds favor issuance of an opinion of some sort. It’s sometimes hard to tell what kind of opinion may be coming: Predictions are difficult, especially about the future. But as a rule of thumb, if the case involves an area of law that is fairly well developed (such as qualified immunity), the opinion may be a summary reversal; if it involves an area of law that is less well developed, the opinion may be a dissent from denial of cert.
And with that, our work here is done. Tune in next week for our last Relist Watch until late February.
Thanks to Bryan U. Gividen for compiling the cases in this post.
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Returning Relists
Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
(relisted after the October 28, November 4, November 10, November 22, December 2, December 9, January 6 and January 13 conferences; seems like we should be seeing an opinion of some sort soon)
Issues: (1) Whether Alabama’s advisory-jury death-sentencing scheme, which is in all relevant aspects the same as the Florida scheme reviewed in Hurst v. Florida, violates the Sixth Amendment; (2) whether Hurstand the Sixth and Eighth Amendments require, at least, a unanimous jury recommendation for a sentence of death, as the Florida Supreme Court held on remand in Hurst; and (3) whether the Supreme Court’s decision in Hurst applies retroactively to the petitioner’s case, and the cases of other condemned inmates sentenced under unconstitutional capital sentencing laws, when the new rule announced in Hurst implicates the fundamental right to a fair trial and substantially enhances fact-finding procedures.
(relisted after the December 9, January 6 and January 13 conferences)
Issues: (1) Whether, to satisfy his Glossip v. Gross burden, a condemned prisoner is limited to selecting an alternative method of execution from those already permitted by state statute; (2) whether Glossip requires a prisoner proposing an alternative lethal injection drug to provide a specific willing supplier for the alternative drug; (3) whether, to meet his Glossip burden, a condemned prisoner is required to provide, through a medical expert, a detailed protocol for an alternative method of execution including “precise procedures, amounts, times and frequencies of implementation”; and (4) whether it is a violation of the 14th Amendment guarantee of equal protection for a state to arbitrarily deviate from its voluntarily adopted execution safeguards.
(relisted after the December 9, January 6 and January 13 conferences)
Issues: (1) Whether, in a means-of-execution suit, known and available alternatives are limited to those already provided in a statute an inmate is challenging; (2) whether an inmate pleads a known and available alternative by identifying an execution method – firing squad – that other states have used and that the state has admitted it can carry out; and (3) whether an inmate pleads a known and available alternative by identifying a lethal-injection drug and identifying vendors who currently sell it.
(relisted after the December 9, January 6 and January 13 conferences)
Issues: (1) Whether Texas’ voter-ID law “results in” the abridgment of voting rights on account of race; and (2) whether judgment should be rendered for the petitioners on the claim that Texas’ voter-ID law was enacted with a racially discriminatory purpose.
(relisted after the January 6 and January 13 conferences)
Issue: Whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims – that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.
(relisted after the January 6 and January 13 conferences)
Shaw v. Alabama
16-5726
Issues: (1) Whether the court should grant this certiorari petition, vacate the judgment below and remand this case for further consideration in light of the court’s recent decision in Foster v. Chatman; and (2) whether the court should grant this certiorari petition, vacate the judgment below and remand this case for further consideration in light of the court’s recent decision in Hurst v. Florida.
(relisted after the January 6 and January 13 conferences)
Issue: Whether the trial judge’s failure to recuse himself from the petitioner’s capital trial violated the due process clause.
(relisted after the January 6 and January 13 conferences)
Issues: (1) Whether the Constitution requires – in a state where each aggravating circumstance is critical to the determination of a sentence – that every aggravating circumstance on which a death sentence is premised be found by a unanimous jury; (2) whether the Constitution requires – in a state where a sentencer is required to find that the aggravating circumstances outweigh the mitigating circumstances to impose death – that this finding be made by a unanimous jury; (3) whether the imposition of a death sentence in the absence of a unanimous jury verdict in support of death – a result that, today, can occur only in Montana and Alabama in their standard sentencing procedures, and in extremely rare circumstances in Indiana and Missouri – violates the Constitution; and (4) whether the Constitution prohibits imposition of a death sentence in a case in which the jury was instructed that its sentencing determination would be advisory or a recommendation.
(relisted after the January 6 and January 13 conferences)
