Author: John Elwood

John Elwood reviews Tuesday’s relists. I’m going to be very summary because of the press of professional obligations this week. As predicted, the Supreme Court agreed with the solicitor general’s recommendation and granted review in Hernandez v. Mesa, 17-1678, involving the liability of American law-enforcement officers who allegedly wrongfully shoot across the U.S.-Mexico border and kill Mexican nationals. Looks like Swartz v. Rodriguez, 18-309, presenting the same question, will be held pending its decision.

John Elwood reviews Monday’s relists. Congress is fighting with the executive branch to try to obtain information this week. But here at Relist Watch, we’re just giving the stuff away. A lot of throughput this week, as the Supreme Court disposed of five relists. Most puzzling is City of Newport Beach, California v. Vos, 18-672, which asked whether the Americans with Disabilities Act requires law-enforcement officers to provide accommodations to armed, violent and mentally ill suspects as they bring them into custody. The Supreme Court took a case raising a similar question in City and County of San Francisco v. Sheehan, but dismissed it as improvidently granted, and many thought the court was looking to finally resolve the question. Newport Beach had been relisted four times, suggesting that one of the justices at least had been exploring a dissent; perhaps he or she was talked out of it.

John Elwood reviews Monday’s relists. The world’s a mess: Tension in the Persian Gulf; turmoil in global trade; persistent conflict. The way things are going, many people can’t even seek comfort in simple escapism. But amid all the conflict and strife, you can at least take comfort in the familiar ritual of opening a new week’s installment of Relist Watch and saying those familiar words uttered by legions of readers since our second installment: “It’s not funny anymore.” Last week’s relists yielded one dissent from denial of certiorari, as well as an order granting a petition, vacating the judgment below and remanding for further consideration in light of the solicitor general’s position that the analysis employed by the U.S. Court of Appeals for the 8th Circuit was faulty. Chief Justice John Roberts, joined by all the conservative justices except Neil Gorsuch, dissented, saying that vacatur was not warranted simply because “the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result.” As anticipated last time, the conservatives objected to the Supreme Court’s “no-fault [vacate and remand] practice.” Still no word, however, on a second relisted case in which the government confessed error, Santos v. United States, 18-7096. We should have an answer on Monday. Five new relists this week. Several of them are quite high-profile. And this may just be my sleep-deprivation talking, but every one of them seems interesting.

John Elwood reviews Monday’s relists. With nothing happening in the news, I feel like there’s not much to work with for the traditional flimsy topical introduction. So let’s just get started. Only two new relists this week. Both Myers v. United States, 18-6859, and Santos v. United States, 18-7096, involve fairly arcane issues about what crimes qualify as predicate offenses under the much-litigated Armed Career Criminal Act – specifically, whether certain state crimes are “divisible,” meaning that even if some subsections wouldn’t qualify as ACCA predicates, others would. What makes these cases noteworthy is how the government handled them. The government initially waived its right to file a response in both, in effect telling the Supreme Court that the cases were so meritless that they didn’t warrant the government’s time. The court nonetheless called for a response in both. When government lawyers dug in to the cases, they had a distinctly different impression than upon first view, and in both cases told the court to grant the petition, vacate the judgment below and remand. In Santos, the government filed a short brief saying that the conviction in question “does not qualify as a violent felony under the [ACCA]” (at least not on the theory the government used below). And in Myers, the government concluded that the court of appeals applied the analysis required by an earlier ACCA case, Mathis v. United States, “in a manner that is inconsistent with this Court’s decision.”

John Elwood reviews Monday’s relists. A lot of movement on the relist front this week. Most noteworthy of all, the Supreme Court granted the long-simmering trio of cases involving whether Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation or discrimination on the basis of gender identity. At 10 relists each, the cases were well past the usual “sell by date” at which it’s more likely that the cases will be the subject of a summary reversal or a dissent from denial of cert than a grant of plenary review. The court also granted cert in a case that will settle once and for all the question of what is the dullest case the Supreme Court has ever taken: CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 18-565, the one-time relist that asks whether under federal maritime law a safe-berth clause in a voyage charter contract is a guarantee of a ship’s safety or just imposes a duty of due diligence. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this casezzzzzzzzzzzzzzzzzz.] Last was Barton v. Barr, 18-725, which asks whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1), which affects an alien’s eligibility for relief from deportation. It’ll be a challenge to summarize this week’s relists in just a couple sentences. That’s because I can’t think of anything to say beyond, “There aren’t any.” Really. We’ve double checked. So instead, let me say a little bit about one case the court has repeatedly rescheduled and that has garnered some attention: Doe v. Boyertown Area School District, 18-658.

John Elwood reviews Monday’s relists. I normally try to have Relist Watch written up by Wednesday after the court issues its order list. Here it is late Thursday and I’m just getting it out. It’s not just that I’m lazy, though I am. It’s that I’ve been mulling over the five new relists, and what I think their prospects are for Supreme Court review. In fact, I’ve been mulling these cases so deeply that you could call today’s installment the “Muller Report.” I like the ring of it. I’ve also spent the extra time coming up with especially funny jokes, dank memes and hilarious GIFs. In fact, they are so good that there’s a danger that if people could just read everything, unrestrained mirth would disrupt the workplace. So I’ve taken the precautionary measure of temporarily obscuring the jokes that pose the greatest risk of disruption until some future national holiday when they can be safely read. I know some of you will be frustrated to read this entire document just to find that all the best bits are blacked out. But the redactions were compelled by the need to prevent harm to ongoing matters.

John Elwood previews next Monday’s likely relists. This week’s installment is going to be brief, but at least it won’t be funny. It’s not just that I’m pressed for time, though I am: As I type this, the power is out for my entire neighborhood, and I sit hunched over my laptop in inky blackness. Apparently, the universe has decided that my gratuitous hyperlinks need to be given a rest. There was one grant out of last week’s relists, pushing the Kansas Supreme Court into an early lead as the most-reviewed court of October Term 2019.  I’m confident that court will not be leading the leagues by summer. There is no conference this week, which means that cases will not be relisted on the docket until next Monday. What follows is our best guess about their identity. There appear to be two new relists. One week after Justice Elena Kagan’s crack suggesting the Supreme Court is a bit too prone to overrule precedent – for a differing viewpoint, see here – both of this week’s likely relists ask the court to do just that.

John Elwood reviews Monday’s relists. After last week’s relist commotion, this week the changes are fewer, more subtle, and bad news for petitioners. Eight-time relist Newton v. Indiana, 17-1511, involving whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, has been downgraded to a “hold” for last week’s grant in Mathena v. Malvo, 18-217, (itself relisted seven times) which basically covers the same issue. (The news isn’t that bad for Newton, who will get the benefit of any ruling in Malvo’s favor, but he loses the opportunity to make an oral argument and the ability to participate in the case as anything but an amicus.) And the Supreme Court denied without comment the intriguing new relist Rentmeester v. Nike, Inc., 18-728, involving a photo that is iconic for both Red America and Blue America – and more iconic still for red and black America. That underwhelming introductory paragraph is sadly all it takes to clear out all the old business this week. But at least we have twice as many new relists to discuss as last week.

John Elwood reviews Monday’s relists. Exciting times on the relist front! After a couple of light weeks, we had a flurry of action Monday. From last installment’s two new relists, the Supreme Court called for the views of the solicitor general in one case involving what accommodations employers must make for their employees’ religious exercise. The court denied cert in the other case, which involved claims of racial bias in jury deliberations, prompting Justice Sonia Sotomayor to issue an opinion respecting the denial. The movement was even more impressive among the serial relists. The court denied cert in all four of the cases that raised the question whether a federal prisoner may file a petition for habeas corpus under 28 U.S.C. § 2241 to raise arguments that were foreclosed by binding (but erroneous) circuit precedent at the time of his direct appeal and original application for post-conviction relief under 28 U.S.C. § 2255, but that become meritorious in light of a subsequent decision. One was filed by the solicitor general, and it’s somewhat unexpected for the court to reject a government petition on an obviously recurring issue. But the government and another petitioner each claimed that their case was the only good vehicle, and apparently they succeeded in persuading the court that all the vehicles were bad.

John Elwood previews next Monday’s likely relists. With my long-awaited argument finally out of the way, my preparations will no longer keep me from creating humorous and informative posts on the relisted cases the Supreme Court is considering; instead, my lack of talent will. We had fairly little movement at the last conference. We got an opinion respecting the denial of certiorari in two cases that had been relisted five times. And one new grant in a case involving Yeezy’s latest persona. But things are afoot with respect to some of the repeat relists. Remember United States v. Wheeler, 18-420? That’s one of four cases (all on their third relist) now before the court that present the question whether a prisoner whose 28 U.S.C. § 2255 motion challenging the applicability of a statutory minimum was denied based on circuit precedent may later seek habeas relief on the ground that the circuit’s interpretation of the relevant statutes has changed. On the day before conference, the solicitor general wrote the court a letter to tell it that Gerald Wheeler had that very day won habeas relief and been resentenced to time served; the government argued that “the grant of habeas relief to shorten [Wheeler’s] term of imprisonment means that this case continues to present a live controversy regarding the permissibility of such relief.” But Wheeler’s counsel wrote the very next day to argue that this “development counsels against a grant of certiorari at this time, not in favor of it.” That represents one more complicating factor as the Supreme Court decides which of the four cases represents the best vehicle for resolving this obviously recurring question. The likeliest beneficiary is Detric Lewis, the only other counseled prisoner who is raising the same issue, and who earlier filed a supplemental brief that suggested that this kind of complication made Wheeler’s case a bad vehicle.