RELIST WATCH

Fourteen cases to watch from the Supreme Court’s end-of-summer “long 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.

Just before the Supreme Court begins its new term on the first Monday in October, the court gathers to consider all the hundreds of cert petitions that have built up over the summer. The court’s so-called “long conference” took place on Sept. 30 this year, and it yielded 15 granted cases so far. But the justices apparently needed a little more time with another 14 cases that were first considered at the long conference, which are newly relisted this week. And the justices have allowed one relist from last term to hang around over the summer.

The new relists are on a host of subjects. But several involve the proper venue for challenging federal regulations. At issue in Oklahoma v. Environmental Protection Agency and PacifiCorp v. Environmental Protection Agency is how to identify the proper court of appeals for challenging the Environmental Protection Agency’s rejection of states’ plans for implementing national air quality standards under the Clean Air Act.

Under the CAA’s judicial review provision, a challenge to the EPA’s “action in approving or promulgating any implementation plan … or any other final action of the [EPA] under this Act … which is locally or regionally applicable may be filed only in” the appropriate regional circuit, while challenges to “nationally applicable regulations … may be filed only in” the U.S. Court of Appeals for the District of Columbia Circuit. The U.S. Courts of Appeals for the 4th, 5th, 6th, and 8th Circuits held that challenges to the EPA’s rejection of implementation plans for states within those circuits are appropriately challenged in their respective regional courts of appeals. In the decision below, the 10th Circuit held that challenges to the disapprovals of Oklahoma’s and Utah’s plans can only be brought in the D.C. Circuit.

The same law is at the center of Environmental Protection Agency v. Calumet Shreveport Refining, L.L.C. and Growth Energy v. Calumet Shreveport Refining, L.L.C.. In a pair of final actions, the EPA denied 105 petitions filed by small oil refineries seeking exemptions from the requirements of the Clean Air Act’s Renewable Fuel Standard program. Six of those refineries petitioned for review of EPA’s decisions in the 5th Circuit, which denied the government’s motion for transfer to the D.C. Circuit. The EPA and an intervenor now challenge that denial, arguing that the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect,” and so must be heard in the D.C. Circuit. I imagine the court will grant review in at least one of the four venue cases, and possibly at least one of each pair of cases.

After last term, which was heavy on separation of powers and “administrative state” issues, many people are watching Consumers’ Research v. Consumer Product Safety Commission, which asks the justices to decide whether the for-cause restriction on the president’s authority to remove commissioners of the Consumer Product Safety Commission violates the separation of powers.

The Supreme Court recently invalidated a removal restriction for an agency headed by a single official in Seila Law LLC v. Consumer Financial Protection Bureau but decades ago upheld removal restrictions on members of a multi-head agency in Humphrey’s Executor v. United States. The 5th Circuit held that the CPSC removal restrictions did not violate the separation of powers, concluding that the agency in question was “structurally identical to the agency that the Supreme Court deemed constitutional in Humphrey’s.” But the 5th Circuit wrote that this case “may … attract the [Supreme] Court’s interest” because “[i]t tees up one of the fiercest (and oldest) fights in administrative law: the Humphrey’s Executor ‘exception to the general ‘rule’ that lets a president remove subordinates at will.”

One of the highest-profile cases considered at the long conference was Boston Parent Coalition for Academic Excellence Corp. v. The School Committee for the City of Boston. The case, like last term’s much-relisted Coalition for TJ v. Fairfax County School Board, involves an equal protection challenge to a facially race-neutral admission criteria at selective public schools, which critics say was adopted to try to reduce the percentage of Asian-American students.

In 2021, the Boston School Committee replaced the traditional standardized entrance test for three elite schools, known as “exam schools,” with an admissions plan that filled 20% of the seats at each school based only on the students’ grade point average, and then allocated the remaining seats for the highest-GPA students from each of Boston’s 29 zip codes. Members of the committee reportedly spoke openly of their intent to reduce racial disparities at the exam schools. The district court found that some members of the board “harbored … racial animus” and that “the race-neutral criteria were chosen precisely because of their effect on racial demographics.”

But the U.S. Court of Appeals for the 1st Circuit held that the School Committee had not violated the equal protection clause because Asian-American and white applicants continued to earn seats at the schools at a rate above the groups’ share of the applicant pool and race itself was not used as a selection criterion for individual students.

The question that the the justices have been asked to decide is whether an equal protection challenge to facially race-neutral admission criteria can go forward when members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented from the denial of certiorari in Coalition for TJ; we’ll soon know whether this case fares any better.

After Hawaii charged Christopher Wilson with carrying a handgun without a license, lower state courts dismissed the charges under the Second Amendment. But the state supreme court reversed, holding that the prosecution did not violate the Second Amendment in an opinion critical of the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The Supreme Court, the state court wrote, was “handpick[ing] history to make its own rules.” The Bruen test, the state court added, was “fuzzy,” “backward-looking,” and “unravels durable law.” And in one particularly memorable passage, the Hawaii Supreme Court wrote that “[t]he spirit of Aloha” that animates Hawaii law “clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” In Wilson v. Hawaii, Wilson urges the justices to overturn what he calls the state court’s failure to conduct the appropriate analysis of his charges under Bruen.

There are also two cases involving the takings clause of the Fifth Amendment, which protects property owners against uncompensated takings. Last term, Thomas wrote that “in an appropriate case,” the court should consider whether New York City’s rent stabilization scheme is an uncompensated taking of private property. G-Max Management, Inc. v. New York provides another opportunity for the court to do so. Here, a group of real estate companies and property managers asks to the justices to decide whether New York’s rent-stabilization laws, and in particular its restrictions on owner reclamation and condo/co-op conversions, effect physical takings. The group also asks the court to overrule or clarify the standard established by Penn Central Transportation Co. v. New York City for determining when a regulatory taking occurs.

And in a case from the far tip of Long Island, Brinkmann v. Town of Southold, New York, two brothers ask the justices to consider “whether the Takings Clause” – and, in particular, the requirement that the property be taken “for public use” – “is violated when a property is taken for a public amenity as a pretext for defeating an owner’s plans for another use.”

The U.S. Court of Appeals for the 2nd Circuit, by a 2-to-1 vote, held that Ben and Hank Brinkmann could not maintain a takings claim despite evidence that the town’s decision to create a park with their land was a pretext for preventing them from opening a hardware store.

In dissent, Judge Stephen Menashi wrote that “the Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause,” and that a park does not satisfy the public-use requirement when its actual purpose and but-for cause is stopping lawful activity.

Planned Parenthood affiliates provide medical care to low-income individuals through state Medicaid programs. In 2018, South Carolina terminated the Medicaid provider agreement of a Planned Parenthood affiliate in that state, saying the agency could receive the funding again if it stopped providing abortions. The affiliate and one of its patients sued under 42 U.S.C. § 1983. The patient invoked the Medicaid Act’s “any qualified provider” provision, which states that “any individual eligible for medical assistance” “may obtain such assistance from any institution” that is “qualified to perform the … services required.” The 4th Circuit held that that provision unambiguously confers a right that is privately enforceable under Section 1983, and that Planned Parenthood is a qualified provider. Judge Julius Richardson concurred in the judgment, asking the Supreme Court to clarify the legal tests governing the inquiry.

Robert Kerr, the director of the South Carolina Department of Health and Human Services, now asks the Supreme Court to consider whether the Medicaid Act’s “any qualified provider” provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; he also asks the court to clarify the scope of a Medicaid beneficiary’s right to choose a provider that a state has deemed disqualified.

The court also relisted four criminal cases. The most intriguing is Andrew v. White. Brenda Evers Andrew was convicted in Oklahoma state court of conspiring with her boyfriend, James Pavatt, to murder her estranged husband, Robert Andrew. Both Brenda Evers Andrew and Pavatt were sentenced to death. On habeas review, Andrew argues that clearly established federal law barred the use of evidence of her history of affairs with other men, and that summary reversal is warranted in light of the cumulative effect of errors, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona. Remarkably, the court has rescheduled this case 11 times between March and July 2024 before requesting the record, which has now arrived from the lower courts. Clearly, at least one of the justices has taken a close interest in the case.

The court also has requested, and now received, the record in Davis v. Colorado, in which the justices have been asked to decide whether the Sixth Amendment guarantees the right to continuous representation by the same court-appointed attorney. William Davis was arrested for aggravated traffic offenses and appointed a public defender. The trial judge denied Davis’s request for the trial date to be delayed because his public defender had another trial on the same day, forcing the late-stage appointment of a new lawyer over Davis’s objection. Davis was convicted.

The Colorado court of appeals reversed Davis’s conviction, holding that indigent defendants are entitled to continued representation by their court-appointed lawyers. But the Colorado Supreme Court reversed again, holding that the Sixth Amendment only provides a right to continued representation for privately retained counsel. Defendants who receive a court-appointed lawyer are only entitled to retain the same lawyer, the court concluded, if they can show that changing attorneys would prejudice them. Davis seeks review of that ruling.

Attorney Elana Gordon was arrested and charged with smuggling a controlled substance into a jail while visiting a prospective client. At trial, a Massachusetts state-court judge permitted a supervisor at a state crime lab to testify to the identity of the substance based on the notes of the analyst who had performed the test, though the supervisor had not been present for or involved in the testing, and to claim their testimony represented their “independent opinion.”

In Gordon v. Massachusetts, Gordon argues that the Sixth Amendment’s confrontation clause prohibits the prosecution from presenting testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the ground that the testifying expert offers a purportedly “independent opinion.” (The question here may remind readers of last term’s unanimously decided Smith v. Arizona.) Gordon argues that this improper use of hearsay is rampant in Massachusetts courts. While Gordon lists as a separate question the issue of whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant, that issue is mentioned only in a footnote in the fact section of her petition and does not appear to be properly presented.

Last up is Esteras v. United States. In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

We should know more soon after the next orders list. Tune in next time!

New Relists

Oklahoma v. Environmental Protection Agency, 23-1067
Issue: Whether a final action by the EPA taken pursuant to its Clean Air Act authority with respect to a single state or region may be challenged only in the D.C. Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.
(Relisted after the Sept. 30 conference.)

PacifiCorp v. Environmental Protection Agency, 23-1068
Issue: Whether the EPA’s disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607(b)(1) if EPA packages that disapproval with disapprovals of other states’ SIPs and purports to use a consistent method in evaluating the state-specific determinations in those SIPs.
(Relisted after the Sept. 30 conference.)

Davis v. Colorado, 23-1096
Issue: Whether, once counsel has been appointed for an indigent defendant, the Sixth Amendment guarantees the defendant the same right to continued representation by that counsel as is enjoyed by defendants affluent enough to retain counsel.
(Relisted after the Sept. 30 conference.)

Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30 conference.)

G-Max Management, Inc. v. New York, 23-1148
Issues: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30 conference.)

Environmental Protection Agency v. Calumet Shreveport Refining, L.L.C., 23-1229
Issue: Whether venue for the refineries’ challenges lies exclusively in the D.C. Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.” 42 U.S.C. 7607(b)(1).
(Relisted after the Sept. 30 conference.)

Growth Energy v. Calumet Shreveport Refining, L.L.C., 23-1230
Issue: Whether an action by the EPA is “nationally applicable” or “based on a determination of nationwide scope or effect” for purposes of laying venue under 42 U.S.C. § 7607(b)(1) when the action uses a common legal requirement and a general factual finding to resolve all pending “small refinery” petitions for exemption from annual obligations under the Renewable Fuel Program irrespective of the petitioning refineries’ location.
(Relisted after the Sept. 30 conference.)

Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30 conference.)

Brinkmann v. Town of Southold, New York, 23-1301
Issue: Whether the takings clause is violated when a property is taken for a public amenity as pretext for defeating an owner’s plans for another use.
(Relisted after the Sept. 30 conference.)

Consumers’ Research v. Consumer Product Safety Commission, 23-1323
Issue: Whether the for-cause restriction on the president’s authority to remove commissioners of the Consumer Product Safety Commission violates the separation of powers.
(Relisted after the Sept. 30 conference.)

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 conference.)

Gordon v. Massachusetts, 23-7150
Issues: (1) Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the grounds that the testifying expert offers a purportedly “independent opinion;” and (2) whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant.
(Relisted after the Sept. 30 conference.)

Esteras v. United States, 23-7483
Issue: Whether, even though Congress excluded 18 U.S.C. § 3553(a)(2)(A) from 18 U.S.C. § 3583(e)’s list of factors to consider when revoking supervised release, a district court may rely on the Section 3553(a)(2)(A) factors when revoking supervised release.
(Relisted after the Sept. 30 conference.)

Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30 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, March. 1, March. 15, March. 22, March. 28, April. 12, April. 19, April. 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, July 1 and Sept. 30 conferences)