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.
It’s only week two of the Supreme Court’s new term and already we’re off to the races. As I kinda-sorta predicted, the court granted review in Hunter v. United States, the case addressing what exceptions exist to the appeal waiver provisions that are in most plea agreements. (The court is apparently holding Chaney v. United States, which presents the same issue.)
But other petitions were not so lucky. Death-penalty case Humphreys v. Emmons, which addresses whether federal courts should defer to a state court’s prior determination of a prisoner’s claim that his appellate counsel was constitutionally ineffective, has been hanging around since last term. The court denied review, with Justice Sonia Sotomayor filing a dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, arguing that the court should vacate to allow lower courts to dig into the allegations of juror miconduct.
The court also denied review in Thomas v. Humboldt County, California, which presented the question whether the Seventh Amendment right to a jury trial in suits at common law is incorporated against the states by the 14th Amendment. Justice Neil Gorsuch filed an opinion respecting denial of certiorari, outlining his belief that “it is hard to imagine how the Seventh Amendment might not be among those rights the Fourteenth Amendment secures against the States.” And the court denied review in Lee v. Poudre School District R-1, a case involving claims of a school district policy to conceal from parents their children’s belief that they’re transgender. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, filed an opinion respecting denial, stating that “[t]he troubling—and tragic—allegations in this case underscore the ‘great and growing national importance’ of the question that these parent petitioners present.”
Some disappointed petitioners walked away without even an opinion respecting denial. That was the fate of Doe v. Grindr Inc., involving immunity under Section 230(c)(1) of the Communications Decency Act. And in our last installment, we identified two cases that both showed a sign of interest from at least one justice (that is, they were relisted), and a sign that the case was not a serious candidate for review (because the respondent had waived its right to file a responsive pleading and the court hadn’t ordered that one be filed anyway). Casting around for a label for such paradoxical cases, I called them, perhaps a little uncharitably, “lost causes.” One involved a challenge to the FDA’s prohibition on removing cells from patients, processing them, and then re-implanting them in the patient; another involved a challenge to California’s “unclaimed property” law that allegedly was being applied too aggressively to deprive owners of their property interests. Both of last week’s “lost causes” were denied without recorded dissent.
The rest of last week’s relists are going back to conference this week. They’re joined by nine newly relisted cases that fall into three groups.
Controlled substances and the Second Amendment
After years of complaints that the Second Amendment right to keep and bear arms is “a disfavored right in this Court,” in more recent years, a majority of the court made clear in New York State Rifle & Pistol Association v. Bruen that it will uphold firearms restrictions only if they “comport[] with history and tradition.” As courts of appeals applying that test have invalidated restrictions, the government has come to the Supreme Court seeking review. Last term in United States v. Rahimi, the court agreed with the government and upheld a bar on gun possession by people subject to domestic-violence restraining orders, reversing the U.S. Court of Appeals for the 5th Circuit.
This week, the court is considering the constitutionality of 18 U.S.C. § 922(g)(3), which prohibits shipping, transporting, or possessing firearms by someone “who is an unlawful user of or addicted to any controlled substance.” The U.S. Court of Appeals for the 5th Circuit held that the law was unconstitutional as applied under the Second Amendment as to most users – essentially, the court held the law could only be constitutionally applied to “those presently impaired.” The U.S. Court of appeals for the 8th Circuit likewise held that the law was unconstitutional as applied to another defendant on different (and narrower) grounds. The government currently has four separate petitions pending asking the court to decide the constitutionality of the provision. The government notes that the law leads to “hundreds of prosecutions every year” (and indeed – though the government doesn’t mention this part – it’s the very statute that Hunter Biden was convicted of violating). The government also contends that the statute “provides a modest, modern analogue of much harsher founding-era restrictions on habitual drunkards, and so it stands solidly within our Nation’s history and tradition of regulation.”
The government has identified United States v. Hemani as the lead case, and says the three other petitions should be held for it. Hemani alleges that there’s no real circuit split among courts that have had the benefit of the court’s most recent rulings, Bruen and Rahimi. The same issue is presented by Harris v. United States, but that case is far enough behind these in the pipeline (the government’s brief isn’t due until the end of the month) that these cases are likely to be resolved before the court acts in Harris. I’d rate Hemani a likely grant.
Judicial Estoppel
Thomas Keathley filed for Chapter 13 bankruptcy in 2019 in Arkansas bankruptcy court, and his plan was confirmed in 2020. In Aug. 2021, Keathley was injured in a motor vehicle collision with a truck belonging to Buddy Ayers Construction and filed a personal injury suit in Mississippi federal court in late 2021. Though Keathley filed several modified bankruptcy plans in 2022, he did not notify the bankruptcy court of his claim until after counsel for BAC moved for summary judgment based on judicial estoppel, an equitable doctrine that, as BAC later framed it, “is designed to prevent a party from asserting a claim in a legal proceeding that is inconsistent with the claim taken by that party in a previous proceeding.” BAC argued that because Keathley had not disclosed the claim for damages in his bankruptcy case, the claim was barred.
The district court, expressing some sympathy for Keathley but professing to be bound by “rigid and unforgiving” Fifth Circuit precedent, barred his personal injury suit. A divided panel of the U.S. Court of Appeals for the 5th Circuit affirmed. Judge Catharina Haynes concurred only in the judgment. She wrote that but for existing circuit law that required that outcome, she “would have dissented,” saying that she “doubt[ed] that the goals” of judicial estoppel were advanced given “evidence that Keathley’s failure to disclose the personal injury claim on his bankruptcy schedules was an honest mistake” that “was of little concern to the bankruptcy court and would not impact Keathley’s creditors.”
Keathley’s petition argues that the 5th Circuit’s categorical rule (which is also used by the U.S. Court of Appeals for the 10th Circuit) conflicts with the more flexible, intent-based approach of the U.S. Courts of Appeals for the 4th, 6th, 7th, 9th, and 11th Circuits, which ask whether the debtor subjectively intended to mislead the bankruptcy court. Under the 5th and 10th Circuits’ “strict liability” rule, he contends, a debtor who merely has a theoretical motive to conceal a claim can lose the right to pursue it, even if the omission was an honest mistake. Buddy Ayers Construction responds that no true circuit split exists and that the 5th Circuit’s decision faithfully applied Supreme Court precedent. The reply insists the divide is real, entrenched, and outcome-determinative, urging the court to take up the case to prevent what Judge Haynes called an “unwarranted windfall” for defendants and an overly harsh penalty for debtors who stumble over bankruptcy’s disclosure maze. This case strikes me as a serious candidate to be granted.
Lost causes?
This week we have four more cases, all of them petitions filed by prisoners filing on their own behalf without representation by lawyers. Three are handwritten. All involve claims of procedural error (as well as other claims, such as statutory claims). To render them more comprehensible, the questions presented in all of the petitions required major surgery. One petition asks whether Twitter CEO Elon Musk can be prosecuted since drug transactions allegedly occur on the site. Another involves a petitioner whose actual middle name is “Dude.” I suspect someone sees something more than is apparent to me.
That’s all for this week. Tune in Monday to see what cases the court will be adding, and whether we get any further clarity about what’s going on with the prisoner petitions.
New Relists
United States v. Hemani, 24-1234
Issue: Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.
(Relisted after the Oct. 10 conference.)
United States v. Cooper, 24-1247
Issue: Whether 18 U.S.C. 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.
(Relisted after the Oct. 10 conference.)
United States v. Daniels, 24-1248
Issue: Whether 18 U.S.C. 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.
(Relisted after the Oct. 10 conference.)
Issue: Whether 18 U.S.C. 922(g)(3), the federal statute that prohibits the possession of firearms by a person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to respondent.
(Relisted after the Oct. 10 conference.)
In re Drummond, 24-7512
Issue: Whether a Miranda warning provided by law enforcement is constitutionally adequate when it fails to explicitly inform a suspect of the right to have an attorney present during questioning.
(Relisted after the Oct. 10 conference.)
Keathley v. Buddy Ayers Construction, Inc., 25-6
Issue: Whether the doctrine of judicial estoppel, designed “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions,” can be invoked to bar a plaintiff who fails to disclose a civil claim in bankruptcy filings from pursuing that claim simply because there is a potential motive for nondisclosure, regardless of whether there is evidence that the plaintiff in fact acted in bad faith.
(Relisted after the Oct. 10 conference.)
Crosby v. Starr, 25-5478
Issues: (1) When does the First Step Act become relevant to a inmate classified as posing a high risk of recidivism; (2) whether the district court erred in denying habeas without an evidentiary hearing.
(Relisted after the Oct. 10 conference.)
In Re Bello, 25-5372
Issues: (1) Whether a district judge is empowered to overturn the wrongful jury’s conviction; (2) whether a criminal prosecution undertaken with knowledge it has no merit and will be overturned on appeal is a waste of federal funds; (3) whether the district court abused its power by delaying the wrongful prosecution in this case; (4) whether the government’s failure to designate the record for appeal amounts to denial of petitioner’s access to court and First Amendment rights; (5) whether the criminal prosecution of a person who controls and manages a corporation under 47 U.S.C. § 230, without a primary violation by the controlled and managed corporation resulting from abuse of products and services by users, customers, or subscribers, after over two years and in the State of Texas, contravenes Louisiana Revised Statutes § 12:1502, Texas Business Organizations Code §§ 3.103, 21.223, and 151.004, and 47 U.S.C. § 230; (6) Whether Elon Musk, the CEO of Twitter, can be criminally prosecuted in a drug and money laundering conspiracy on the ground that Twitter users used the Twitter platform to sell drugs.
(Relisted after the Oct. 10 conference.)
In re Nelson, 25-5077
Issues: (1) Whether the state appellate court erred in concluding that the criminal complaint satisfied statutory requirements despite the absence of a judicial finding of probable cause; (2) Whether the state appellate court erred in determining that probable cause to convict was established at the preliminary examination rather than deciding whether probable cause existed at the initial judicial hearing for issuance of the arrest warrant; (3) Whether the state appellate court erred in holding that petitioner received effective assistance of counsel where the record shows counsel failed to challenge the validity of the complaint and arrest warrant through an evidentiary hearing and withdrew a motion for such a hearing after the trial judge stated it was necessary.
(Relisted after the Oct. 10 conference.)
Returning Relists
Flower Foods, Inc. v. Brock, 24-935
Issue: Whether workers who deliver locally goods that travel in interstate commerce — but who do not transport the goods across borders nor interact with vehicles that cross borders — are “transportation workers” “engaged in foreign or interstate commerce” for purposes of the exemption in Section 1 of the Federal Arbitration Act.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Hutson v. United States, 24-1022
Issue: Whether a state or local official who moves to terminate prospective relief under 18 U.S.C. § 3626(b)(1)(A) bears any affirmative burden beyond demonstrating that the requisite amount of time has passed.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Issues: (1) Whether compliance with state laws directly contrary to Title VII of the Civil Rights Act of 1964’s requirement to provide a reasonable accommodation for religious beliefs may serve as an undue hardship justifying an employer’s noncompliance with Title VII; and (2) whether a state law that requires employers to deny without any consideration all requests by employees for a religious accommodation, contrary to Title VII’s religious nondiscrimination provision, is preempted by Title VII and the Supremacy Clause of the Constitution.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Beck v. United States, 24-1078
Issues: (1) Whether Feres v. United States‘s bar against a servicemember’s ability to bring tort claims “incident to service” is only triggered when the injury was directly caused by the servicemember’s military duties or orders; and (2) whether the court should limit or overrule Feres because its limitation on servicemembers has no basis in the Federal Tort Claims Act‘s text and is unworkable.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Issues: (1) Whether, viewing the facts from the officers’ perspective at the time, the officers acted reasonably under the Fourth Amendment by using bodyweight pressure to restrain a potentially armed and actively resisting individual only until handcuffing could be accomplished; and (2) whether the panel erred in denying qualified immunity where no case clearly established that pre-handcuffing bodyweight pressure violates the Fourth Amendment.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Issue: Whether the confrontation clause of the Sixth Amendment permits the use of a screen at trial that blocks a child witness’s view of the defendant, without any individualized finding by the trial court that the screen is necessary to prevent trauma to the child.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Veneno v. United States, 24-5191
Issues: (1) Whether Presley v. Georgia‘s requirement that courts “consider alternatives to closure even when they are not offered by the parties” before closing the courtroom during a criminal trial applies even if the court intends to stream the trial via audio, video, or both; (2) when no court order is sought or made on a defendant’s right to a public trial, what qualifies as an “opportunity to object” to the denial of that right under Federal Rule of Criminal Procedure 51(b); and (3) whether the court should overrule United States v. Kagama and hold that Congress lacks the constitutional authority to criminalize conduct between members of the same Tribe that occurs on Tribal land, or at least clarify the constitutional foundation on which Congress may criminalize such conduct.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Little v. United States, 24-7183
Issue: Whether the court should grant the petition, vacate the judgment below, and remand the case for further consideration of the government’s pending motion to dismiss pursuant to the president’s January 20, 2025, executive order directing the attorney general to seek dismissal with prejudice of all pending cases against individuals for “conduct related to the events at or near the United States Capitol on January 6, 2021.”
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Issues: (1) Whether clearly established federal law requires reversal of a state appellate court’s denial of relief from a capital prosecutor’s discriminatory exercise of four peremptory strikes against Black venire members wherein the trial court, for each of the four strikes, failed to determine “the plausibility of the reason in light of all evidence with a bearing on it” under Miller-El v. Dretke; (2) whether Mississippi Supreme Court precedent, which deems waived on direct review arguments of pretext not stated in the trial record, defies this court’s clearly established federal law under Batson v. Kentucky; and (3) whether a finding of waiver on a trial record possessing Batson objections, defense counsel’s efforts to argue the objection, and the trial court’s express assurance the issues were preserved constitutes an unreasonable determination of facts.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
Issue: Whether the U.S. Court of Appeals for the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act‘s deferential standard by overturning a state-court decision based on the supposed lack of “nuance” and “exhaustiveness” in the court’s written opinion, rather than the reasonableness of its legal conclusion.
(Relisted after the Sept. 29 and Oct. 10 conferences.)
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