Relist Watch

John Elwood reviews Monday’s relists.

I’ve got to be extremely summary this week because of the press of urgent work. First, we’ll dispatch the old business: Last week’s relists yielded five new grants (with the justices picking Comcast Corporation v. National Association of African American-Owned Media, 18-1171, over its companion Charter Communications Inc. v. National Association of African American-Owned Media, 18-1185, to resolve an issue about the showing of causation required for a claim of discrimination in cable-carriage decisions). And we got a statement respecting denial from Justice Stephen Breyer in four-time relist al-Alwi v. Trump, 18-740, concerning the indefinite detention of enemy combatants at Guantanamo.

That brings us to this week’s new business. There are no cases that have been relisted for the first time this week. But there’s a trio of closely watched cases that have been relisted for a second time … sort of. The federal government has three pending petitions involving the Trump administration’s decision to end the Deferred Action for Childhood Arrivals policy: Department of Homeland Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588, and McAleenan v. Vidal, 18-589. The court relisted all three after the January 11 conference, and there they sat for five months. Court-watchers have speculated about what was going on; to me, it looked like the court was holding the cases for something on its merits docket, perhaps the census case, perhaps Azar v. Allina Health Services – both administrative law cases addressing steps the government must take to justify certain actions. Neither is clearly related to DACA, but the court has a pretty low threshold for holding a case if it might be affected. Because these cases have been set for conference after a long period of stasis, I would normally classify them as “released holds” rather than relists.

Recently, the court rejected the government’s request to expedite consideration of a fourth DACA petition, in which the government argued that there was an “urgent need for the[] prompt consideration” of the DACA petitions “before the Court’s summer recess.” By releasing the apparent hold on the first three DACA petitions and setting them for consideration this Thursday, the court has set the stage for the government to get what it sought in its motion – a decision before the summer recess on whether the court will hear the DACA cases, and, if cert is granted, briefing over the summer in preparation for a fall argument.

That’s all for this week. Thanks again to Ben Moss for compiling the relists.

New Relists

See above.

Returning Relists

Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921

Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.

(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

Department of Homeland Security v. Regents of the University of California, 18-587

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

Trump v. NAACP, 18-588

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

McAleenan v. Vidal, 18-589

Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.

(relisted after the January 11 and January 18 conferences)

Klein v. Oregon Bureau of Labor and Industries, 18-547

Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith‘s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.

(relisted after the March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

McGee v. McFadden, 18-7277

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)

Box v. Planned Parenthood of Indiana and Kentucky, 18-1019

Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.

(relisted after the May 9 and May 16 conferences; now held)

Jordan v. City of Darien, Georgia, 17-1455

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.

(relisted after the May 30 and June 6 conferences)

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