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Cases in the Pipeline

By on Mar 17, 2020 at 10:00 am
This week we highlight petitions pending before the Supreme Court that address, among other things, whether the Sixth Amendment right to effective assistance of counsel includes the right to a plea offer that was never made; whether a criminal defendant has a constitutional right to subpoena service providers and force them to turn over the contents of their account-holders’ communications; and whether the “motivating factor” standard is most consistent with the plain language and purposes of the Americans with Disabilities Act, which forbids discrimination “on the basis of” disability but does not specifically set forth the standard to be applied in determining causation. The petitions of the week are below the jump:

By on Mar 13, 2020 at 9:00 am
This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment and strict scrutiny apply to subject-matter restrictions on ballot initiatives, whether officers can presume that a person is “armed and presently dangerous” simply because the person possesses any amount of marijuana, and whether the Individuals with Disabilities Education Act requires administrative exhaustion when a plaintiff brings a non-IDEA claim seeking relief that is not available under the IDEA. The petitions of the week are below the jump:

By on Mar 5, 2020 at 3:19 pm
This week we highlight petitions pending before the Supreme Court that address, among other things, whether the burden of persuasion in qualified immunity cases should be on the plaintiff or on the defendant, whether the due process clause is violated when the prosecution relies on material, perjured testimony to secure a conviction but did not know the testimony was perjured until after the trial, and whether the Supreme Court’s unanimous holding in Cooper v. Oklahoma clearly established that Georgia could not impose the burden of requiring proof of intellectual disability beyond a reasonable doubt. The petitions of the week are below the jump:

By on Mar 4, 2020 at 10:12 am
John Elwood briefly reviews Monday’s relists. Editor's note: This post has been updated with a discussion and note of two additional new relists: Avery v. United States, 19-633, and Kelly v. White, 19-264. For the second week running, the Supremes cleared out a metric ton of relists. Because we love success stories, in discussing last week’s relists, we of course start with the grants: two cases involving the Affordable Care Act (again!), one Freedom of Information Act case (again!), and the case that won the lottery to replace Walker v. United States, which was dismissed earlier this year after the petitioner died. A slew of other cases are being held for those new grants -- so many that including all the hyperlinks would not seem funny at all, but just annoying. Finally, Justice Neil Gorsuch filed a statement respecting the denial of cert criticizing the idea of deferring to agency interpretations of a criminal statute. This will be a quick post this week because all the new relists fall into (barely) three categories. Most of the new relists last week involved an effort to find a replacement for Walker. This week, most of the new relists are potential replacements for another recently dismissed case, Mathena v. Malvo, 18-217, involving the D.C. sniper.

By on Feb 28, 2020 at 1:00 pm
This week we highlight petitions pending before the Supreme Court that address, among other things, whether Congress’ omission of a mens rea for the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices; whether the “self-executing” just compensation clause abrogates a state’s 11th Amendment immunity, allowing a property owner to sue the state for a taking of property; and whether, in civil forfeiture lawsuits, when a district court has ordered the United States to return the seized money and the lawsuit will never be refiled, it is an abuse of discretion for the dismissal to be without prejudice. The petitions of the week are below the jump:

By on Feb 28, 2020 at 9:55 am
John Elwood briefly reviews Monday’s relists. Because of the press of business, it will be another brief writeup today. The Supreme Court cleared out an enormous number of relists at the February 21 conference -- its first conference in almost a month. The court granted review in Fulton v. City of Philadelphia, 19-123, an important case involving the free exercise clause of the First Amendment. The city of Philadelphia wants to exclude Catholic Social Services from participating in its foster-care program unless the organization ends its practice, based on its religious teachings on marriage, of not providing written endorsements for same-sex couples seeking to be foster parents. The case not only raises questions about how to establish certain religious discrimination claims, but also calls on the court to revisit Employment Division v. Smith -- the landmark decision holding that the government can enforce laws that burden religious beliefs or practices as long as those laws are “neutral” or “generally applicable.” The case will likely be heard next term. In light of that grant, the court is now holding serial relists Ricks v. Idaho Contractors Board, 19-66, which likewise involves the validity of Smith, as well as Arlene’s Flowers, Inc. v. Washington, 19-333, involving a First Amendment challenge to a state’s efforts to impose penalties on a floral designer who refused for religious reasons to provide flowers for same-sex weddings.

By on Feb 20, 2020 at 3:13 pm
This week we highlight petitions pending before the Supreme Court that address, among other things, whether the constitutional right to counsel of choice extends to cases in which a criminal defendant’s assets are frozen as part of a parallel civil enforcement action; whether, under the due process clause of the 14th Amendment to the Constitution, virtual contacts can establish specific personal jurisdiction over a nonresident defendant; and whether Section 13(b) of the Federal Trade Commission Act authorizes district courts to enter an injunction that orders the return of unlawfully obtained funds. The petitions of the week are below the jump:

By on Feb 17, 2020 at 6:32 pm

John Elwood reviews recent guidance on cert-stage case scheduling

On February 14, the Supreme Court Clerk’s Office released a valentine for the bar: a new, four-page memorandum addressing cert-stage pleadings and the scheduling of cases for consideration at the court’s periodic conferences. The memorandum is the second in a series of occasional memoranda the clerk’s office issues for the guidance of counsel and litigants; the first such memo, addressing the filing of amicus curiae briefs, was released in October 2019. The memo promotes clarity by explaining in detail a number of the court’s practices on cert-stage scheduling that in the past largely traveled by word of mouth.

The new memo addresses some of the basics and some of the finer points involving cert-stage filings. Among the more basic: The memo makes clear that briefs in opposition are not required and discusses the process for obtaining extensions to file responsive pleadings and for formally waiving the respondent’s right to file them. Among the finer points, the memo notes that, as a matter of court practice, lawyers who are not members of the Supreme Court bar can both obtain extensions to file briefs in opposition and file waivers, but consistent with Rule 9, only members of the court’s bar can file a responsive cert-stage pleading.

By on Feb 14, 2020 at 9:53 am
This week we highlight petitions pending before the Supreme Court that address, among other things, whether a plasma donation center is a “place of public accommodation” subject to the requirements of Title III of the Americans with Disabilities Act, whether laws mandating membership in a state bar association are subject to the same “exacting” First Amendment scrutiny that the Supreme Court prescribed for mandatory public-sector union fees in Janus v. American Federation of State, County, and Municipal Employees, Council 31, and whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state-law negligence action making a “leader” of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there. The petitions of the week are below the jump:

By on Feb 7, 2020 at 2:30 pm

John Elwood briefly reviews the likely relists.

This is not a time of year that is usually known for being relaxing. For normal humans, this is the winter of their discontent, a period of bad weather between the end of the football season and the start of spring training. But for Supreme Court-watchers like me, the period between the last January conference and the mid-February conference is like one long vacay. That’s because we have the better part of a month with only one set of relists.

Mind you, the court won’t actually identify the relists by updating the docket until closer to the February 21 conference (probably Tuesday the 18th; that Monday is Washington’s Birthday). So during the interim, we are left to speculate. What follows is our best guess of what the relists will be based on which cases the court left unresolved after the January 24 conference. In short, it looks like we will probably have two new relists -- relatively few given the number of cases that were considered at that conference.