Relist Watch

John Elwood reviews Tuesday’s relists.

If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is weird – it is a time when you can no longer count on basic things you took for granted.

But at least (cue obvious segue) we can count on one thing: The Supreme Court will relist a mess of new cases just as you’re trying to prepare for oral argument. This week is no exception: By my count, we have a whopping 10 new relists (to say nothing – and I do intend to say nothing – of four returning relists). And these are not small cases. For example, a case with a caption like United States v. Microsoft Corporation, 17-2, just sounds epic. And an epic case it is, presenting the issue of whether Microsoft must comply with a probable-cause-based warrant for email records that the company maintains in Ireland. The U.S. Court of Appeals for the 2nd Circuit concluded that Microsoft was not required to comply with the warrant, and Uncle Sam seeks to challenge that conclusion. The petition is also the rare relist that involves a case for which there is not – at least so far as I have found – a square circuit split on the narrow question presented. The case thus is seeking a position on the docket with Carpenter v. United States, 16-402, as a case so important that the Supreme Court takes it even in the absence of a square split.

And then there is a group of three cases out of U.S. Court of Appeals for the 9th Circuit that challenge a California law that requires licensed pregnancy-related clinics to disseminate a notice about the availability of publicly funded family-planning services, including contraception and abortion, and requires unlicensed clinics to provide extensive disclaimers. In National Institute of Family and Life Advocates v. Becerra, 16-1140, A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153, pro-life pregnancy centers challenge the law on compelled-speech and viewpoint-discrimination grounds, arguing that California enacted the law specifically to target such pro-life centers. These cases were originally conferenced back in June, and the Supreme Court has already called for and received the record in all three, so it’s clear the justices have been keeping a close eye on them.

The interesting free-speech issues do not end there: Minnesota Voters Alliance v. Mansky, 16-1435, presents another juicy one. Minnesota law forbids voters from wearing political badges, buttons and insignia at polling places. The U.S. Court of Appeals for the 8th Circuit upheld the law against a free-speech-clause challenge. The petitioners contend that the First Amendment doesn’t permit states to make even polling places “speech-free zones.”

And that is just the tip of the proverbial iceberg. The rest of the relists all concern criminal law. If I were not so busy, I’d tell you all about the fascinating double jeopardy case, the interesting wiretap case with the funny name, the state-on-top habeas cases and the court’s latest encounter with the much-litigated Armed Career Criminal Act. But I’ve gotta go now – those animal videos are not going to like themselves.

Thanks to Kent Piacenti for compiling the cases in this post.


New Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6 conference)

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6 conference)

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6 conference)

Currier v. Virginia, 16-1348

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

(relisted after the October 6 conference)

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6 conference)

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6 conference)

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6 conference)

United States v. Microsoft Corporation, 17-2

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

(relisted after the October 6 conference)

Dahda v. United States, 17-43

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

(relisted after the October 6 conference)

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6 conference)

Returning Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(relisted after the September 25 and October 6 conferences)

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.

(relisted after the September 25 and October 6 conferences)

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any pro-competitive benefits from the provisions to American Express.

(relisted after the September 25 and October 6 conferences)

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(relisted after the September 25 and October 6 conferences)

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